Denny v. Hancock (1870) LR 6 Ch App 1, Court of Appeal
The plaintiffs put up property for sale by auction. Prior to bidding for the land, the defendant inspected the property. He took with him a plan that had been annexed to the particulars of sale. The plan showed that the western side of the property was bounded by a strip of ground that was covered with a mass of shrubs or trees. The defendant discovered an iron fence and three magnificent trees to the west of the property and, in the belief that they represented the western edge of the property, he bid for it. In fact the fence and the three trees belonged to an adjoining property. The actual boundary of the property was in fact concealed by shrubs. Further, the plan represented all the trees on the property in a conspicuous manner but did not show the three trees seen by the defendant. The three trees were found to be a material element in the value of the property. When he discovered the mistake the defendant refused to complete the purchase. The plaintiffs sought a decree of specific performance and they succeeded before Malins VC. The defendant appealed successfully to the Court of Appeal where it was held that the defendant had been misled by the fault of the plaintiffs and that the plaintiffs were not entitled to a specific performance order.
Sir W.M. James LJ
I have no doubt whatever that if I had done exactly what this gentleman did, and taken that plan in my hand, and gone through the property, and found a shrubbery, or ground covered partly with shrubs and partly with thorns, with an iron fence outside, I should have arrived at exactly the same conclusion as this gentleman did, and I should have gone to the sale and bid in the belief that I was buying the belt up to the iron fence with those trees upon it . . . There is no denial in evidence of this fact, that the plan produced was calculated to induce anybody to believe that the whole of the belt, or shrubbery, or whatever you may call it, was included in the property sold.
It is urged, however, that the Defendant was negligent. The substance of the argument seems to be this: that if he had looked at the plan very minutely he would have seen that the trees in the meadows and in the garden were marked, but these three fine trees, which added so much to the value of the property, were not marked; and it is urged that the absence of these remarkable trees from the plan is a thing calculated to put a man so completely on his guard that he ought not to have been misled, and is not to be believed when he says he was misled. But it seems to me that it never would occur to a person who entertained no doubt whatever about what the thing was that had been sold to him, to make any inquiry about the omission of two or three trees in that which appeared on the plan to be a mass of wood. If this gentleman did as he says, buy it under a mistake as to the property, such mistake was caused by the plan which was presented to him, drawn by the vendors’ agent, and also caused by this fact, which alone might have been enough to mislead him, that there was on the ground an apparent visible boundary, quite distinct from the almost invisible real boundary. I think that, independently of the plan, and on this latter ground alone, it would have required great consideration before a Court of Equity would have fixed the purchaser with this contract, which he swears he entered into in the belief that the property extended to its apparent boundary; but coupling the state of the property with the representation made by the plan, I am of opinion that it would not be according to the established principles of this Court to compel the purchaser to complete his contract. I am also of opinion that the mistake was occasioned by at least crassa negligentia on the part of the vendors in respect to what they sent out to the public. I am, therefore, unable to agree with the ViceChancellor, and am of opinion that he ought to have dismissed this bill with costs.
Sir G. Mellish LJ delivered a concurring judgment.