Tamplin v. James (1880) 15 Ch D 215, Court of Appeal
The plaintiffs put property up for sale under the following description:
‘All that well-accustomed inn, with the brewhouse, outbuildings, and premises known as The ship, together with the messuage, saddler’s shop, and premises adjoining thereto, situate at Newerne, in the same parish, No 454 and 455 on the said tithe map, and containing by admeasurement twenty perches, more or less, now in the occupation of Mrs Knowles and Mr S. Merrick.’
‘This lot is situate close to the Lydney Town station, on the Severn and Wye Railway, and abuts on other premises of the vendors, on the canal, and on lands now or late of the Rev. W. H. Bathurst.’
The lot was not sold at the auction but the defendant, who was present at the auction, made an offer to buy the property immediately afterwards. His offer was accepted and he signed a contract to purchase the property according to the conditions of sale for £750. The defendant made his offer in the belief that two pieces of garden were included in the sale. The reason for his belief was that he had known the property from the time that he was a boy and he knew that the gardens had always been occupied with the Ship Inn and the saddler’s shop. Had he looked at the plans for the sale he would have seen that the gardens were not included in the sale and, further, that they were not included in the description of the sale. When he discovered his mistake the defendant refused to complete the sale unless the gardens were conveyed to him. The plaintiffs brought an action for specific performance. Both at first instance (before Baggallay LJ) and in the Court of Appeal it was held that the plaintiffs were entitled to a specific performance order.
The Defendant insists in his statement of defence that he signed the memorandum in the reasonable belief that the property comprised therein included the whole of the premises in the occupation of Mrs Knowles and of Mr Samuel Merrick, and not merely the messuages and hereditaments which the Plaintiffs allege to be the only property comprised therein, and that such his belief was induced and confirmed by the acts and words of the auctioneer at the sale. The Defendant has sworn positively that he had such a belief at the time he signed the memorandum, and I see no reason to doubt the statement so made by him; but was such a belief a reasonable belief?
It is doubtless well established that a Court of Equity will refuse specific performance of an agreement when the Defendant has entered into it under a mistake, and where injustice would be done to him were performance to be enforced. The most common instances of such refusal on the ground of mistake are cases in which there has been some unintentional misrepresentation on the part of the Plaintiff (I am not now referring to cases of intentional misrepresentation which would fall rather under the category of fraud), or where from the ambiguity of the agreement different meanings have been given to it by the different parties. . . . But where there has been no misrepresentation, and where there is no ambiguity in the terms of the contract, the Defendant cannot be allowed to evade the performance of it by the simple statement that he has made a mistake. Were such to be the law the performance of a contract could rarely be enforced upon an unwilling party who was also unscrupulous.
I think that the law is correctly stated by Lord Romilly in Swaisland v. Dearsley 29 Beav 430, 433: ‘The principle on which the Court proceeds in cases of mistake is this – if it appears upon the evidence that there was in the description of the property a matter on which a person might bonâ fide make a mistake, and he swears positively that he did make such mistake, and his evidence is not disproved, this Court cannot enforce the specific performance against him. If there appears on the particulars no ground for the mistake, if no man with his senses about him could have misapprehended the character of the parcels, then I do not think it is sufficient for the purchaser to swear that he made a mistake, or that he did not understand what he was about.’
Now does it appear, or can it safely be held in this case that the Defendant reasonably entertained a belief that the gardens were included in the property purchased by him? I will consider first the terms of the contract itself, and then the allegations as to the acts and words of the auctioneer and other agents of the Plaintiffs, for it is possible that although the terms of the agreement taken per se may have been free from doubt, enough may have been said or done by the Plaintiffs’ agents to lead the Defendant to attribute a different meaning to its terms.
Mr Pearson [counsel for the plaintiffs] admitted, and I think he could not well have avoided admitting, that if the vendors had merely referred to the property as being in the occupation of Mrs Knowles and Mr Merrick without more, there would have been at any rate such an amount of ambiguity that the Defendant might reasonably have understood that he was purchasing the whole of the property in their occupation. But the particulars go on to state that the property sold is Nos. 454 and 455 on the tithe map and contains twenty perches. The additional land which the Defendant claims to have included is about twenty perches more. Therefore, if he is right in his contention, he would be entitled to double the amount which the printed particulars state the lot to contain. There, no doubt, is force in the argument that a person unaccustomed to measuring would not know whether a property contained twenty perches or forty perches, but that does not get rid of the effect of the reference to the tithe map. The Defendant appears to have purchased in reliance upon his knowledge of the occupation of the premises without looking at the plans, and probably without paying any attention to the details of the particulars of Lot 1, but is a person justified in relying upon knowledge of that kind when he has the means of ascertaining what he buys? I think not. I think that he is not entitled to say to any effectual purpose that he was under a mistake, when he did not think it worth while to read the particulars and look at the plans. If that were to be allowed, a person might always escape from completing a contract by swearing that he was mistaken as to what he bought, and great temptation to perjury would be offered. Here the description of the property is accurate and free from ambiguity, and the case is wholly unaffected by Manser v. Back 6 Hare 443 and the other cases in which the Defendant has escaped from performance of a contract on the ground of its ambiguity.
Baggallay LJ therefore made a decree for specific performance. The defendant appealed to the Court of Appeal
In my opinion, the order under appeal is right. The vendors did nothing tending to mislead. In the particulars of sale they described the property as consisting of Nos. 454 and 455 on the tithe map, and this was quite correct. The purchaser says that the tithe map is on so small a scale as not to give sufficient information, but he never looked at it. He must be presumed to have looked at it, and at the particulars of sale. He says he knew the property, and was aware that the gardens were held with the other property in the occupation of the tenants, and he came to the conclusion that what was offered for sale was the whole of what was in the occupation of the tenants, but he asked no question about it. If a man will not take reasonable care to ascertain what he is buying, he must take the consequences. The defence on the ground of mistake cannot be sustained. It is not enough for a purchaser to swear, ‘I thought the farm sold contained twelve fields which I knew, and I find it does not include them all’, or, ‘I thought it contained 100 acres and it only contains eighty’. It would open the door to fraud if such a defence was to be allowed. Perhaps some of the cases on this subject go too far, but for the most part the cases where a Defendant has escaped on the ground of a mistake not contributed to by the Plaintiff, have been cases where a hardship amounting to injustice would have been inflicted upon him by holding him to his bargain, and it was unreasonable to hold him to it.
Webster v. Cecil 30 Beav 62 is a good instance of that, being a case where a person snapped at an offer which he must have perfectly well-known to be made by mistake, and the only fault I find with the case is that, in my opinion, the bill ought to have been dismissed with costs. It is said that it is hard to hold a man to a bargain entered into under a mistake, but we must consider the hardship on the other side. Here are trustees realizing their testator’s estate, and the reckless conduct of the Defendant may have prevented their selling to somebody else. If a man makes a mistake of this kind without any reasonable excuse he ought to be held to his bargain.
Brett LJ and Cotton LJ delivered concurring judgments.