Clowes v Higginson

JurisdictionEngland & Wales
Judgment Date21 May 1813
Date21 May 1813
CourtHigh Court of Chancery

English Reports Citation: 35 E.R. 204



See Small v. Attwood, 1832, You. 439; Humphries v. Horne, 1843-44, 3 Hare, 277; Manser v. Back, 1848, 6 Hare, 448; Price v. Ley, 1863, 4 Giff. 252; Dear v. Verity, 1869, 38 L. J. Ch. 297, 486.

'.} [524] clowes v. higginson. May 14, 17, 21, 1813. [See Small v. Attwood, 1832, You. 439 ; Humphries v. Home, 1843-44, 3 ITare, 277 ; Manser v. Back, 1848, 6 Hare, 448; Price v. Ley, 1863, 4 Gift'. 252 ; Dear v. Verity, 1869, 38 L. J. Ch. 297, 486.] Distinction between the Admission of parol Evidence to support, or resist, the special Performance of a Contract for Land : admissible for the latter Piirpose upon Mistake and Surprise as well as Fraud; not to vary, add to, or explain, the written Contract. Upon the ambiguous Terms of a Contract, as including or excluding the Timber, the Purchaser's Bill for specific Performance dismissed ; and having throughout insisted upon his Construction, ho was not permitted to compel the Vendor to convey upon the Terms lie originally offered. (See Wall v. Stubbs, 1 Mad. Rep. 80.) After the Decree, pronounced at the Rolls in the Cause of Higginson v. Clowes (15 Ves. 516), dismissing the Bill, this Suit was instituted by the Purchaser, the Defendant in that Cause ; praying a specific Performance of the Contract, according to his Construction ; that is, including the Timber, except upon the Lots Four and Five ; to which, as he represented, the separate Valuation was to be confined : the Defendants, the Vendors, insisting, that under the eighth Condition of Sale all the Timber was to be separately valued. Mr. Hart, and Mr. Bell, for the Plaintiffs, opposed the Introduction of parol Evidence ; insisting, upon the Authorities, cited in the former Cause between these Parties, that it cannot be admitted to vary, add to, or explain, a written Contract ; as it may to shew Fraud or Surprise. Sir Samuel Romilly, and Mr. Heald, for the Defendant. Evidence may clearly be admitted in support of the Defence to a Suit in a Court of Equity for the specific Performance of a Contract against the plain Intention ; where it can be clearly established, that the one did not understand, that he was selling what the other conceived that he was buying. In such a Case, existing bona fide, and established by clear Evidence, the Court would refuse to execute the Agreement ; leaving the Party to Law. [525] The Object of this Evidence is to explain an Ambiguity on the Face of the Conditions of Sale ; and its Nature is, that the Auctioneer before the Sale stated to the Company in the Presence of Persons, bidding for the Plaintiff, that the Timber on the different Lots was to be paid for at a Valuation ; that several Persons would have bid considerably more, if they had not by that Explanation been led to conclude, that they should have a farther Sum to pay for the Timber. The Case of Gunnis v. Erhart (1 Hen. Blacks. 289), respecting Evidence of Declarations by the Auctioneer against the printed Conditions, was not followed by any Decision until the Case of Higginson v. Clowes ; and in Dreue v. Warmington (at the Bolls, 24th April 1800), Lord Alvanley, with Gunnis v. Erhart before him, admitted Evidence to explain, and almost to contradict, the printed Particular ; certainly not understanding himself as contradicting that Case; but clearly expressing hii3 Opinion, that such Evidence ought to be received ; and deciding upon it. If however these Declarations cannot bo received as Evidence to explain an Ambiguity, it cannot be refused as a Defence to a Bill for specific Performance of a Contract : a Suit, in which the Defence may shew, not only what the Agreement was, but under what Circumstances it took place; that in this Instance the Sale, including the Timber, at the Price, that was bid, proceeded from Misapprehension, not only on his Part, but under which all Persons present laboured ; influencing them to limit their Biddings : a Case therefore of extreme Hardship; sufficient of itself without Fraud to induce a Court of Equity to refuse its Aid to the Purchaser IV. &B. ,526. CLOWES V. HIGGINSON 205 to obtain so great an Advantage. This Dis-[526]~tinction between cancelling and specifically performing an Agreement, receiving parol Evidence on the one Case, to rebut an Equity, refusing it in the other, to alter, explain, or add to, the written Contract, was ^established in Savage v. Taylor (For. 234); and has been followed in many modern Cases : Woollam v. Hearn (7 Ves. 211), Ramsbottom v. Gosden (1 V. & B. 165. Winch v. W4nchesier, 1 V. & B. 375): was admitted by Lord Redesdale in Olinan v. Cooke (1 Sch. & LeFroy, 22); and is particularly illustrated in The Marquis of Townshend v...

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7 cases
  • Fullers' Theatres Ltd v Musgrove
    • Australia
    • High Court
    • Invalid date
  • Price v Ley
    • United Kingdom
    • High Court of Chancery
    • 1 January 1863
    ...thought he had not sold, it was a ground to set aside the contract. [252] And Sir Thomas Plumer, in the case of Cloives v. Higginson (1 V. & B. 524), speaking of Lord Thurlow's opinion on this point, states also, as the view of Sir William Grant, that the consequence of such a mistake would......
  • Morris v Owen
    • United Kingdom
    • High Court of Chancery
    • 22 May 1813
    ...Mr. Sidebottom, for the Plaintiff. The Lord Chancellor [Eldon] at first intimated, that the Course was a Motion, 204 CLOWES V. HIGGINSON 1 V. & B. 524. that the Plaintiff should draw up his Order, and amend within a Week; or that the Order to amend should be discharged : but, having consult......
  • Hodges v Horsfall and Others
    • United Kingdom
    • High Court of Chancery
    • 16 December 1829
    ...afterwards as Plaintiff', lie able to establish on a bill of his own. See Higgimson v. Clowes (15 Ves., 516), and (Clowes v. Hiyginson (1 V. & B., 524). the solicitor-general, Mr. Roupell, and Mr. Koe, contra. Where an agreement particularly describes and points to a written document, or a ......
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