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restriction plaintiff was apprized at the time of the agreement. But it is admitted that fraud would deprive a party of his right to relief here, and there are abundant circumstances of fraud in this case: the concealment from the defendant's father the scheme of taking a fine, the advantage taken of the defendant's embarrassed situation.
Mr. Burne in reply. As to the want of mutuality, equity does not always consider it a necessary ingredient. Hatton v. Grey, 2 Chan. Cas. 164; 1 Eq. Abr. 21. S. C.; Lowther v. Carill, 1 Ver. 221. And the want of mutuality in this case is caused by the defendant himself, who, knowing of his disability to make such a lease, yet entered into the agreement.
I confess I have no conception that a court of equity ought to decree a specific performance in a case where nothing has been done in pursuance of the agreement, except where both parties had by the agreement a right to compel a specific performance according to the advantage which it might be supposed that they were to derive from it; because otherwise it would follow that the court would decree a specific performance where the party called upon to perform might be in this situation, that if the agreement was disadvantageous to him he would be liable to the performance, and yet if advantageous to him he could not compel a performance. This is not equity, as it seems to me. If indeed there was a concealment, or an ignorance of the facts on the one part, and that thereby the other party was led into a situation from whence he could not be extricated, then he would have a right to have the agreement executed cy pres; that is, a new agreement is to be made between the parties. Now, it is not, and could not be contended in this case, that Mr. Butler could have a right to enforce this agreement, for he could enforce it only according to the terms of the agreement, and these he cannot perform on his 1802. part for want of the trustees' consent, and the court could
LAWRENSON not say to Mr. Lawrenson, "you shall forego a part of the
If Mr. Lawrenson, on the faith of this agreement, had put himself into a situation from which he could not extricate himself, and was therefore willing to forego a part of his agreement, that would be a circumstance to induce a court of equity to give relief :(a) but here, there is an agreement entered into with the perfect knowledge of both parties that the lease promised was contrary to the provisions in the settlement under which Mr. Butler holds : the parties entered in a scheme for the purpose of defeating the provisions of that settlement, and Mr. Lawrenson makes himself privy to the transaction. It is manifest that a fine was talked of, and then a contrivance for a fine, and a very awkward one, was resorted to: it is also manifest that for the purpose of making a lease under the power,
(a) In the course of the argument, his lordship alludeď to a case of Lord Bolingbroke, which as to this point we collected to be as follows : The incumbent of a living had contracted with the present Lord B. for the purchase of the advowson, and on the faith of the contract had built a much better house in the glebe than he would otherwise have done. The late Lord B, was then living, and the present Lord only tenant in tail in remainder, and the contract was made with a perfect understanding how the parties were situated. The late Lord B. was not in a state of mind to do any act himself, but the legal estate was vested in a Mr. Cator during his Lordship’s life, and therefore he was competent to make a tenant to the precipe. Cator refused to do so, consequently the present Lord B. could make no sufficient conveyance. Lord THURLOW thought that the gentleman who had made the contract, and who, upon the faith of it, had built a good house on the glebe, should get the utmost.Lord B. could give him, and directed that his Lordship should convey a base fee by levying a fine with a covenant to suffer a recovery whenever he should be enabled so to do by the death of the tenant for life.
of other persons was known to be necessary: therefore here is an agreement which was executed by these parties under the supposition that it was mutually binding: it is impossible to read the evidence in the cause without perceiving that Mr. Butler considered Mr. Lawrenson as much bound as he himself was.
It is conceded now that Lawrenson was not bound, but it is contended that Butler was ; now, was that the intention of the parties in the transaction ? I think clearly not; and therefore it is an agreement founded on a mistake ; an agreement entered into by Mr. Butler under a supposition that he was capable of enforcing it as much as Mr. Lawrenson was. It is said that courts of equity have decreed performance in cases where one party only was bound by the agreement: I believe it would be difficult to find a case where that has been done, particularly a late case. In the case of Hatton v Gray, 2 Ch. Cas. it was considered as sufficient that the agreement should be signed by the party against whom the performance was sought, because such are the words of the statute of frauds : now, such certainly is the import, that no agreement shall be in force but when it is signed by the party to be charged; but the statute does not say that every agreement so signed shall be enforced; the statute is in the negative. To give it this construction would, as I have heard it urged, make the statute really a statute of frauds, for it would enable any person who had procured another to sign an agreement to make it depend on his own will and pleasure whether it should be an agree. ment or not.(a)
(a) Vid. Bromley v. Jeffries, 2 Vern. 415, where one of the grounds for refusing specific performance is stated to have been the want of mutuality: and in Armiger v. Clarke, Bunb. 111, it is stated to have been a principal ground for refusing specific performance in that case. It was also made a ground of argument
No man signs an agreement but under a supposition that 1802. the other party is bound as well as himself; and therefore if
LAWRENSON the other party is not bound, he signs it under a mistake:
BUTLER. that mistake might be a ground for relief in equity, but is surely not ground for a specific performance. Under these circumstances, the impression upon my mind is, that I must dismiss this bill. This agreement was signed in mistake: it is manifest that Butler could not have executed a lease in compliance with it, and as he could not, it is manifest that this is not the agreement which he meant to sign.
(His Lordship intimated a wish to look into the cases that were this day cited, and directed the cause to stand over till to-morrow: but in the course of the day, counsel for the plaintiff informed his Lordship, that the plaintiff was content that his bill should be dismissed without costs, he undertaking not to bring an action at law; and accordingly the bill was dismissed without costs.)
in Stapilton v. Stafilton, 1 Atk. 10. But in that case there was no want of mutuality between the original contracting parties at the time the agreement was ontered into, and the argument was on that account held not to apply.
CLINAN J. COOKE. December 8, 9, 13, 14.
THE A. by public HE bill was filed by two persons named Clinan, against advertisement offers lands to
Cooke, and Cahill; and prayed a specific performance of be let for three an agreement for a lease of three lives of the lands menlives or thirtyone years; and tioned, entered into between the Clinans and Cooke, and proposals hav. in case it should appear by Mr. Cooke's answer that he had ing been made by B. and ac- put it out of his power to make a lease pursuant to the cepted, an agreement is
agreement, the bill prayed that he should be decreed to executed be
make compensation to the plaintifis. tween B. and the agent of A. authorized to In the year 1798, Mr. Cooke caused an advertisement to contract for him for a lease be inserted in the public papers in the following words: of the lands, in “ To be let for three lives or thirty-one years from the first ment, the term “ day of May next, the lands of Purcell's-Garden, confor which the lease is to be
taining, &c. (then followed a description of the lands): made is not “ Application to be made to William Cooke, Esq. or mentioned. A. is not bound to “ Edinund Meagher of, &c. dated October 23d, 1798." perform this
In consequence of this advertisement the plaintiffs applied contract, there being no evi. to Meagher, and entered into a treaty with him for a lease ing of the term of the lands, and on the 15th of February, 1799, the followto be demised. ing article was executed : “ Memorandum of an agreement There being no reference in
concluded by and between William Cooke, Esq. of, &c. the agreement " and Patrick Clinan and Michael Clinan both of, &c. to the adver. tisement, parol
“ hath demised set and to farm iet unto the said P. and M. evidence cannot be received
“ Clinan all that and those that part of the lands of Purcell'sto connect the “ Garden, now in the possession of Michael and Martin one with the other so as to “ Cahill, containing, &c. at the yearly rent of two guineas per ascertain the
“ annum for the first year commencing from the first of May term.
An agent to next, and 21. 8s. annually for the remainder of the term : contract for the “ the said Wm. Cooke is to give the said P. and M. peaceable sale, &c. of land under the 2d,
possession, in case the said Michael and Martin Cahill dissect. of the stat. of frauds, pute giving the possession, according to a notice served need not be au- u them in writing, on the first day of May next; otherwise writing.