1846. BREYNTON v. Howard v. Wright. Specific performance being discretionary, parol evidence is receivable on the part of a defendant, not only of fraud and misrepresentation, with reference to a for dehors the deed. That the case assumed that the contract (a) SIR JOHN LEACH.-Specific performance being discretionary, parol evidence is receivable on the part of a defendant, not only of fraud and misrepresentation with reference to written contract, but also of error and surprise, Howard v. Wright, V. C. February, 1823. written contract, but also of error and surprise. a Horsfall v. 1846. BREYNTON v. WESTERN of the thing referred to (a). In none of them was there any His Lordship then observed that (as he had shown in a prior part The abstract of the following case is from the pen of the Lord Hodges. an agreement refers to a plan as agreement refers to a plan as the plan agreed upon, parol evidence is admissible to identify the plan, but unless such parol evidence be of the clearest kind the Court will not decree a specific performance. dence is admissible to identify 1846. BREYNTON v. The Lord abstract of the pital v. Gibson, 2 Dow. 301. where a judgment contains an abstract of an important case, would, previously to its perusal, take the trouble to make an extract of his own, and then compare the two abstracts. He would thus have an opportunity of ascertaining how far success had attended his endeavour to seize the point of doctrine, and to curtail all superfluous statement without, however, omitting any fact requisite for complete elucidation. The case of The Feoffees of Heriot's Hospital v. Gibson, 2 Dow. 301, was simply this :-The magistrates of Edinburgh, together with the feoffees of Heriot's Hospital, projected a new street and had plans of it prepared. The magistrates and the hospital agreed together to sell plots of ground for building, the magistrates taking a sum as purchase-money, and a feu duty (a) being reserved to the hospital. The magistrates concurred with the feoffees of Heriot's Hospital in exhibiting a plan of the intended street, and the respondent purchased under the exhibition of that plan a certain part of the land. The plan, however, was not referred to in the feu charter (6). An act of parliament had empowered the magistrates to obtain, within a limited time, certain property, the acquisition of which was necessary to enable them to carry the plan into effect. That property was not obtained within the time prescribed by the act; which time, indeed, had already expired when the plan was exhibited to the respondent. The magistrates being unable to complete the street according to the plan, the respondent refused to pay his feu duty. The case went through various gradations of contest, and in the (a) "Our heritable rights are regulated by the feudal law, by which feudum, which we call a feu, was defined to be a free and gratuitous right to lands, made to one for service to be performed by him. He, who grants this feu, is in our law called the superiour, and he, to whom it was granted, is called the vassal. The first division of feus from the several kinds of holding, is that some lands hold feu. Feu-holding is that whereby the vassal is obliged to pay to the superiour a sum of money yearly in name of Feu dutie, nomine Feudi firma." Sir George Mackenzie's Institutions of the Law of Scotland. (b) "The charter is in effect the disposition of the feu, made by the superior to the vassal."-Sir George Mackenzie's Institutions. "A charter is the written evidence of a grant of heritable property made under the condition, that the grantee shall annually pay a sum of money, or perform certain services, to the granter; and by our law it must be in the form of a written deed. The granter of a charter is termed the superior, the grantee the vassal." -Bell's Dictionary. 1846. end the Court of Session seemed to think that the question would turn upon the magistrates having neglected to embrace a particular BREYNTON v. opportunity of acquiring, at a reasonable price, the property ne- THE LONDON cessary to complete the street according to the plan. When the AND North WESTERN case came before the House of Lords, however, that view of the RAILWAY Court of Session was entirely disregarded, and the expressed COMPANY. opinions of the learned lords, who decided it in that House, proceeded upon different grounds. Nothing turned upon the particular law of Scotland, and the general principles, upon which the decision was made, were as applicable to a case in this country as to a case in Scotland. Lord Eldon expressed himself thus :— "It was perfectly wild to say that the mere exhibition of a plan, was sufficient to form a binding contract. One man might purchase on the notion that the intended street would soon be completed; another, perhaps, with the idea that it would not. But the whole amounted to this: You may purchase on the notion that this plan will be executed, but all that we have anything to do with, is our contract.' The feuar (a) then enters into a solemn contract, and if his contract contained nothing about this how could he say that the magistrates were bound by the plan? The feu charter was the material document there, and must be carefully examined. There might be such an obligation in it as that here contended for, but it appeared to him that the judgment could not rest on the ground which the Court below had taken." He then upon a subsequent day expressed himself thus :-" From these two last interlocutors (b) the present appeal was brought. There was a reference to one case where the magistrates exhibited a plan, with a beautiful view of the disposition of the grounds in front of the new buildings to be erected, a thing which was done here every day without any idea that the proprietors were to be prevented from erecting other houses, merely by having exhibited a different disposition of the grounds in a picture, unless it was so stipulated in the contracts between the parties. The magistrates the ground being their own-began to erect houses where they had exhibited terraces and walks. An action of declarator (c) Lords Ordinary, whether they ex- (c) The student will find a defi- 1846. BREYNTON v. was brought to have it declared that the magistrates were not entitled to erect these new buildings without consent of the feuars, and a process of suspension was also instituted to stop the progress of the work in the meantime (a). The Court refused to pass the bill (b), and the question came to this House, where Lord Mansfield, who would be remembered as long as the law of England or of Scotland existed, made a very eloquent speech. But after all that he had said, what he did was merely to give an opportunity of examining the question of right. He could easily conceive that deference to his opinion had put an end to further proceedings in that case-the Corporation having been, perhaps, almost frightened out of their senses by his speech,—but still this was no judgment upon the question of right, and at any rate there was a material distinction between that case and the present. This was not a case where one restricted himself as to the free use of his own land, but where he was supposed to have become bound, without a special contract to that effect, to make himself owner of the lands of others. He held it in all cases to be dangerous that when men had put their contracts into the solemn form of a charter, they should look not at what was contained in that charter, but say that the charter should operate as if a term had been in it which was not there, merely because there had been some representation about such a condition at the time the contract was formed." Lord Eldon was here referring to a different case, but it shows how very important his observations are, because he is making them when he has before him a very strong opinion expressed by Lord Mansfield in a case of a similar kind. Lord Eldon added that, "He dared not advise their lordships to say that this plan was a warranty. The whole amounted to this only --that the parties might entertain a rational hope that what was exhibited, might be done in the course of improvement. But there was no ground to say that this amounted to an engagement that it should be done." Lord Redesdale said :-"It appeared to him to be dangerous when parties entered into a contract to suffer anything to affect it, which was extraneous to what was in the contract itself. There was no undertaking by the Governors of the Hospital that this street should be completed, and they could not with propriety have entered into any such undertaking, for the effect would be to deprive them of any benefit from the property unless they compelled the magistrates to make this street.""If they were bound at all they were bound whatever (a) The student may refer to the note, ante, page 110. (b) Bill of Suspension and Interdict. |