doubt arose, whether the evidence was sufficient to esta blish the parol undertaking to indemnify, entered into by the defendants, Lord Thurlow directed an issue to be tried, whether such promise was made on the day of the execution of the assignment; and, this being found in the affirmative, the plaintiff had a decree for a specific performance. In speaking, however, of the case of Pember v. Mathers, the present Master of the Rolls appears to have entertained some doubt, how far it would be proper to go the whole length of the doctrine there laid down, or *to decree a specific performance, on the ground of such a promise (1).

It does not appear from any reported case, that the plaintiff has been allowed to give parol evidence, varying a written agreement, on the ground of mistake or surprise. In the case of Joynes v. Statham (2), indeed, where, on a bill for the specific performance of an agreement for the lease of a house at a certain rent, the defendant was admitted to prove by parol evidence, that the agreement was for rent, clear of all taxes, Lord Chancellor Hardwicke, after observing, that "the defendant had a right to insist, either on account of an omission, mistake, or fraud, that the plaintiff should not have a specific performance," is reported to have added, "Suppose the defendant had been the plaintiff, and had brought a bill for a specific performance of the agreement, I do not see but that he might have been allowed the benefit of disclosing this to the court; because it was an agreement executory only, and as in leases there are always covenants relating to taxes, the master will inquire, what the agreement was as to taxes; and therefore the proof offered here is not a variation of the agreement, but is explanatory only of what those taxes were." Lord Redesdale in a very late case (3), commenting on this passage, observed, " that the words do not appear to import any thing posi

(1) See 14 Ves. jun. 524. (2) 3 Atk. 388.

Lef. 39. See also 4 Bro. Ch. C. 518.
6 Ves. jun. 335. n.; and 7 Ves. jun.

(3) Clinan v. Cooke, 1 Schoal. & 220.

* 454

tive;" and with respect to the case, which, Lord Hardwicke conceived, might possibly be made, where even a plaintiff might be admitted to show an omission in a written instrument as well on the ground of mistake as of fraud, added, that he could find no decision, except the contrary way.

*In the case of the Marquis of Townshend v. Stangroom (1), Lord Eldon, after observing "that it was competent to a court of equity, (for the purpose of enabling it to determine whether it will specifically execute an agreement,) to receive evidence of the circumstances under which it was obtained," added, " and I will not say, that there are no cases in which it may be received to enable the court to rectify a written agreement upon surprise or mistake, as well as fraud; proper irrefragable evidence, as clearly satisfactory, that there has been mistake or surprise, as, in the other case, that there has been fraud. I agree that those producing evidence of mistake or surprise, either to rectify an agreement, or calling upon the court to refuse a specific performance, undertake a case of great difficulty; but it does not follow, that it is therefore incompetent to prove the actual existence of it by evidence." A specific performance was in this case sought, with a variation attempted to be introduced by parol. And Lord Eldon stated, " he would not say, that, upon the evidence without the answer, he should not have had so much doubt, whether he ought not to rectify the agreement, as to take more time to consider, whether the bill should be dismissed; but the evidence must be taken, due regard being had to the answer (2); and the Court is

Sect. 3.] in Courts of Equity.

not to decide upon the allegation as to the probability, against the answer." The bill was accordingly dismissed, but without costs.

The later case of Woollam v. Hearn (3), determined by the Master of the Rolls on great consideration, sets the doctrine of the courts of equity on this subject in a very *distinct and clear point of view. The plaintiff there filed a bill for the specific performance of an agreement for a lease; and the bill stated, that the rent of 73l. 10s., specified in the agreement, was inserted by mistake, or with some unfair view; the real agreement being, that the plaintiff was to have the lease upon the same rent as the defendant paid to his lessor, and that he the defendant did not pay more than 60l. The defendant in his answer admitted, he might have said, that the plaintiff should have the lease upon the same terms, not meaning the same rent, but upon terms on the whole equally advantageous; insisting, that as he had laid out a great deal of money, the plaintiff would upon the whole have as good a bargain. The plaintiff offered parol evidence to prove, that he was to have it on the same terms as the defendant had it, and to show, that nothing could be meant by the expression, but the same rent; nothing being in discussion between them, but the amount of the rent. The question was, whether this evidence was admissible. The Master of the Rolls, in giving judgment, said, that " by the rule of law, independent of the statute of frauds, parol evidence could not be received to contradict a written agreement. To admit it for the purpose of proving, that the written instrument does not contain the real agreement, would be the same as receiving it for every purpose. It was for the purpose of shutting out that inquiry, that the rule of law was adopted. Though the written instrument does not contain the terms, it must in contemplation of law be taken to contain the agreement, as furnishing better evidence than any that parol can supply. If this had been

* 457

a bill brought by the defendant for a specific performance,"
added the Master of the Rolls, " I should have been bound
by the decisions to admit the parol evidence, and to re-
fuse a specific performance. But this evidence is offered,
not for the purpose of resisting, but of obtaining a de-
cree; first, to falsify the written agreement, and then to
substitute in its place a parol agreement to be executed by
the court. Thinking as I do, that the statute has been
*already too much broken in upon by supposed equitable
exceptions, I shall not go farther in receiving and giving
effect to parol evidence, than I am forced by precedent.
There is no case, in which the court has gone the length
now desired. But two cases (1) are produced, in which,
it is said, there is an intimation from Lord Hardwicke
to that effect. Upon this, it might be sufficient to say,
it was not decided. But it is evident from the manner
in which that great Judge qualifies his own doubts, that
he thought it impossible to maintain such a proposition
as the plaintiff is driven to maintain. In Walker v.
Walker, it is to be observed, first, that the parol evi-
dence was not offered for the purpose of contradicting
any thing in the written agreement. It was admitted,
that, as far as it went, it stated the true meaning; but it
was contended by the defendant, that there was another
collateral agreement, which the plaintiff ought to exe-
cute, before he could have the benefit of the written
agreement; it was evidence too, offered in defence, to
resist a decree. The evidence offered in this case," added
the Master of the Rolls, concluding his judgment, "is to
vary an agreement in a material part; and having varied
it, to procure it to be executed in another form. There
is nothing to show that this ought to be done." The pro-
posed evidence was accordingly rejected; and the bill dis-
missed, without costs.

Where a written agreement has been varied by parol, and there has been such a part-performance of the parob

(1) Walker v. Walker, 2 Atk. 98. Joynes v. Statham, 3 Atk. 388

variation, as would have procured it to be specifically executed, provided it had formed a part of the original agreement, the plaintiff in that case will be admitted to give evidence of such subsequent unwritten variation. As to what constitutes a part-performance, Lord Redesdale, in a very late case (2), has laid down the following rule, that *" nothing is to be considered as a part-performance, which does not put the party into a situation, that is a fraud upon him, unless the agreement is performed; for instance, if upon a parol agreement, a man is admitted into possession, he is made a trespasser, and is liable to answer as a trespasser, if there be no agreement. This is put strongly in the case of Foxcraft v. Lister (1); there, the party was let into possession on a parol agreement, and it was said that he ought not to be liable as a wrong-doer, and to account for the rents and profits, because he entered in pursu ance of an agreement. Then, for the purpose of defending himself against a charge, which might otherwise be made against him, such evidence was admissible; and if it was admissible for such purpose, there is no reason why it should not be admissible throughout. That," said Lord Redesdale, "I apprehend to be the ground on which courts of equity have proceeded, in permitting part-performance of an agreement to be a ground for avoiding the statute; and I take it, therefore, that nothing is to be considered as part-performance, which is not of that nature. Payment of money is not part-performance, for it may be repaid; and then the parties will be just as they were before, especially if repaid with interest. But the great reason, why part-payment does not take such an agreement out of the statute, is, that the statute has said, that in another case, namely, with respect to goods, it shall operate as a part-performance; and the courts have therefore considered this as excluding agreements for lands, because it is to be inferred, that when the legislature said it should bind in the case of goods, and were silent as to