CHAMBERS v. LIVERMORE. be explained by others, and which are relied upon as furnishing an inference of fraud. So far, therefore, from satisfactorily excusing the delay, that delay, under the circumstances, naturally tends to cast suspicion upon the complainant's case. And whatever tendency any of the testimony now in the cause might have to establish the fraud and collusion charged, we can feel no satisfactory assurance that a very different state of facts might not have appeared, fully establishing the validity and good faith of the proceedings, had this suit been brought, and the testimony taken, while those who best knew the facts were able to speak. Nor can we grant the relief asked without just apprehension of doing injury alike to the rights of the living and the memory of the dead. The decree of the court below dismissing the bill must be affirmed, with costs. MARTIN Ch. J. and COOLEY J. concurred. CAMPBELL J. did not sit in this case. 15 381 96 15 381 124 689 381 2379 381 131 Wm. C. Chambers v. Samuel Livermore and another. Chambers made a contract with defendants (who were old people) to buy their farm for $11,000, paying $1,000 down and the balance at the end of ten years. By the contract a deed of the premises was to be executed on payment of the $1,000 and a mortgage given for the remainder, with a clause inserted that if he sold off any portion of the land the defendants should release that part from the effect of the mortgage, on receiving a sum proportionate to the quantity so sold. A bill was filed for the specific performance of this contract. Defendants in their answer claimed that an acre of the said farm, (including certain buildings,) of much greater relative value than the rest, was to be excepted from the contract. Chambers denied this, and the contract contained no such exception. It did not bind Chambers personally, or compel him to purchase the land or pay the purchase money. Chambers paid the $1,000, but defendants refused to give a deed, unless with the reservation of the one acre. Evidence was introduced before the commissioner tending to show the real understanding respecting said reservation. Held, that whether the one acre was to be reserved or not, the contract was too unconscionable to be specifically enforced: That specific performance even of a binding contract was not a matter of right; and a court of equity will refuse it, and leave a party to his remedy at law, if not clearly satisfied that it embodies the real understanding of the parties. Held further, that it was competent by way of defense to a bill for specific performance to show by parol evidence that either by fraud or mistake the contract did not express the real agreement of the parties or the understanding of the defendant. Heard May 2d, 3d and 4th. Decided May 14th. Appeal in Chancery from Saginaw Circuit. This was a bill for specific performance. The case was heard in the court below on original and cross bill, answer and proofs. A decree was rendered for complainant in accordance with the prayer of the bill. The facts are stated in the opinion. Brown and James, for complainant. 1. The Circuit Court properly dismissed the cross bill. a. It does not allege an agreement to reserve an acre of land described with the requisite certainty, and the defect is not cured by the evidence taken in the case. b. Parol evidence of fraud or mistake can not be received to vary a written contract for the purpose of carrying it into effect as varied.-2 Lead. Cuses in Eq. 684; 1 Id. 741; 1 Johns. Ch. 273, 425; 10 Me. 80; 19 Conn. 63; 14 Ves. 519; 17 Mass. 303. 2. Courts of equity will decree a specific performance where the contract is in writing, and is certain, and is fair in all its parts, and is for an adequate consideration, and is capable of being performed.-1 Story's Eq. Jur. & 751. The contract stated in the bill is in writing, is certain, is fair in all its parts, and is capable of being performed. It alleges an agreement to pay $11,000 for the entire farm, which contains by actual survey 28 acres or $392.43 an acre. The evidence shows the value of the farm to have 1 CHAMBERS v. LIVERMORE. been $300 per acre or $8,409. It thus appears that the complainant not only agreed to pay an adequate price, but $2,591 more. 3. The specific performance of the contract is resisted on the alleged ground of a contemporaneous parol agreement, whereby one acre of land, with the buildings thereon, was reserved from the sale; not embodied therein by reason of fraud upon the part of the complainant. 4. Whether such parol agreement between the parties existed or not, there is nothing in the testimony to warrant the conclusion that it was fraudulently excluded from the written agreement. Where fraud or mistake is set up as a defense to a written contract, clear and unequivocal proof is required to authorize the interference of the court.-5 Mich. 209. Even if fraud can render a parol agreement admissible in evidence to control a deed, still the fraud should be proved before the agreement is admitted. To prove the fraud by the agreement, and then give effect to the agreement on the ground of the fraud, is obviously reasoning in a vicious circle.-2 Lead. Cas. in Eq. 706, and cases there cited. Upon any possible construction of the testimony of the defendants, as to what transpired when the final contract of the 12th of August was signed-assuming it to be true -it can only show a parol agreement not embodied in the writing, on the faith of a promise by the complainant to perform it. In the absence of fraud or mistake, parol evidence is inadmissible to vary a written contract, and the weight of authority is in favor of the position, that both at law and in equity the evidence must be such as to show that the contract as executed differs from that, which one or both of the parties intended to execute, and not merely that there were terms or provisions not embodied in the writing, CHAMBERS v. LIVERMORE. even where they were omitted on the faith of an understanding that it should take effect in the same manner as if they had actually been inserted. 2, Lead. Cas. in Eq. 673 and 74, 708 and cases there cited.-5 Vesey, 722; 1 Barb. 42; 1 Bro. Ch. 92; 2 Id. 219; 2 Johns. Ch. 74; 11 Paige, 650; 9 Dana, 108; 5 Mich. 218, 210; 8 Id. 66. D. W. Perkins, for defendants. 1. The court will not grant a specific performance if complainant has been guilty of fraud in obtaining the contract by misrepresentation or by undue influence.-17 Conn. 1. a. Misrepresentation will form a bar to specific performance, though the party representing did not know that it was false.-Frey on Specific Performance, §§ 430, 433, 475, and note; 1 Story Eq. Juris. § 193; 36 Barb. 377. b. If there was a misunderstanding between the parties as to the terms of the agreement, courts of equity will not grant specific performance, but in such cases it will decree a performance, as parties have agreed.— Frey on Specific Perform. §§ 474 to 479 and note, also, §§ 484 to 495, 500 and note 191, § 501; 21 N. Y. 238; 40 Barb. 238; 13 Howard, 57; 10 Paige, 526. C. Courts of equity will protect old and infirm persons from the effect of bargains obtained by undue influence.— 1 Story Eq. Jur. §§ 234, 235, 336, 221 to 242; 3 Lead. Cas. in Eq. 127, 128 and 129. The law defines what constitutes fraud. That by the term fraud, the legal intent and effect of the acts complained of is meant. The law has a standard for measuring the intent of parties; and declares an illegal act prejudicial to the rights of others, a fraud upon such rights, although the parties deny all intention of committing a fraud.-Har. Ch. 19. d. Where one makes false statements by means of which another is induced to enter into a contract, the CHAMBERS v. LIVERMORE. right of the latter to have the contract rescinded does not depend upon whether the person knew the statements to be false when he made them or not. The law has regard rather to the effect of the false statements upon the party to whom they are made, than to the actual intent to deceive by the other.-14 Mich. 109. If one person makes a false statement to another who is about dealing with him upon the faith thereof, he shall make it good; or if he makes any representation which has induced the other to act upon it.-Frey on Specific Performance, 269 and note, 365 and 366; 7 Johns. Ch. 194. e. The adequacy or inadequacy of price will not be inquired into where the transaction is unaccompanied with fraud. In this case there is no fraud in the sale by defendants. Chambers is informed that the other party "had backed out and would not take the farm."-1 Story Eq. Jur. § 345. COOLEY J. Complainant filed his bill to compel the specific performance of a contract, bearing date August 12, 1865, by which the defendants agreed to sell to him a small farm of twenty-seven acres and a quarter, more or less, in the city of East Saginaw, for the sum of eleven thousand dollars; one thousand dollars of which was to be paid on or before the first day of November then next, on the payment of which they were to convey the land to him, upon his giving back a mortgage conditioned for the payment of the remaining ten thousand dollars in ten years after date, with interest, with the agreement, however, that if Chambers at any time should wish to convey any part or portion of the premises, the Livermores should cancel the mortgage on such part or portion, on Chambers paying to them such portion of the mortgage as the portion of the land so to be conveyed would bear to the whole |