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When one holding a buyer's option makes his election to purchase, and tenders the money according to the contract, it is the duty of the seller to accept the price, and execute a deed to the purchaser for the property; and when one holding an option to sell elects to make the sale, and tenders a deed, it is the duty of the buyer to accept the deed, and pay the price.

A suit for that purpose is subject to the general rule that the specific enforcement of contracts for the purchase of land is not a matter of course, but rests in the discretion of the court in view of all the circumstances.

An option to buy or sell land, more than any other form of contract, contemplates a specific performance of its terms; and it is the right to have them specifically enforced that imparts to them their usefulness and value. An option to buy or sell a town lot may be valuable when the party can have the contract specifically enforced, but if he cannot do this, and must resort to an action at law for damages, his option in most cases will be of little or no value. No man of any experience in the law would esteem an option on a law-suit for an uncertain measure of damages as of any value. The modern doctrine is that when such contracts are free from fraud, and are made upon a sufficient consideration, they impose upon the makers an obligation to perform them specifically which equity will enforce.

In an opinion written by Chief Justice Waite, the Supreme Court of the United States enforced, quite as a matter of course, the specific performance of a seller's option which was in these terms:

It is further understood and agreed that, if said executors desire it, said Brown shall, at the expiration of five years stated in said contract of April 25, 1871, repurchase the 130 acres of land in the City of Des Moines at $25,000.

Chief Justice Waite's opinion contained no intimation that the want of mutuality in the contract was an impediment to its specific enforcement. The want of mutuality was too obvious to be overlooked, and the fact that it was not adverted

to shows that, in the judgment of that court, the right to enforce such a contract was too well settled to justify any observation. Viewed in any light, the bill presented a case of equitable cognizance, and it was error to dismiss it.

[Concealment, Fraud, Misrepresentation.]

A court of equity requires the utmost good faith between buyer and seller, and will not specifically enforce a contract which is not entirely according to good faith.

The negligence or carelessness of a purchaser is no ground for not executing an agreement.

A plaintiff will not be allowed to deal on a lease, as a good and subsisting one, when at the time he was conscious it was worth nothing, and that the other party was ignorant of that fact.

Where a party cannot grant a lease, in pursuance of the terms agreed on, which shall bind the inheritance, the court will not decree a specific performance, by directing an invalid lease to be executed, which might encumber and embarrass those entitled to the estates in remainder.

As an answer to the question, what are the obligations imposed on a person who deals for his own benefit, or as the agent of another with the property of one to whom he stands in a fiduciary character, the court has held that both the solicitor and the commissioner have duties imposed upon them that prevent their buying for themselves. And that being the general rule it follows of necessity that neither of them can be permitted to buy for a third person, for the court can, with as little effect, examine whether that was done by making an undue use of the information received in the course of their duty in the one case as in the other.

The principle to be deduced from the decided cases is that there must be entire good faith, and in the instance of a solicitor it is incumbent upon him to satisfy the court that he has done as much for his client as he would have done if the purchaser had been a third person.

While it is not laid down that an agent cannot act for and

bind opposing parties, yet it must appear that the principals were at arms' length in the transaction; and it would require a very strong case to make this out where a vendor and purchaser are together in the same house, but the vendor is excluded from the room where the negotiation is going on, and the agent does not disclose to them both the whole nature of the dealing.

If a man knows that he has committed a trespass of a very serious character upon his neighbor's property, and finding it convenient to screen himself from the consequences, makes a proposal for the purchase of the property, he ought to communicate with the person with whom he is dealing the exact state of the circumstances of the case. The proposal he makes is not in reality a simple proposal for purchase of the property; it involves a buying-up of rights which the owner has acquired against him, and of which the owner is not aware. He is, therefore, bound to inform the owner of the case, and is not at liberty to enter into a contract without his disclosing the commission of the act which has rendered him liable to certain consequences, and of which act the person with whom he is dealing has a right to be informed in order to know what course to adopt.

It would be an error to say generally that you cannot enforce a contract in equity where the one party knows more of the value than the other does. It happens frequently in the purchase of pictures, for instance, that one party knows a great deal more of the value than the other, and yet the bargain is perfectly good.

Suppose a picture-dealer, employed to clean a picture, scrapes off some of the paint to see if he can discover a mark which will indicate who is the artist, and discovers that it is the work of a great painter; that would be a legitimate mode of acquiring knowledge for the purpose of enabling him to buy the painting at a lower price than the owner would have sold it for had he known it to be the work of a famous artist.

Where there is fraud in the conduct of an agent in effecting a sale, of which fraud his principal is ignorant, the vendee, although he cannot sue the principal for the fraud of the

agent, may even, as against an innocent principal, rescind the contract and reclaim the money paid.

The principle on which the performance of an agreement is compelled requires that it must be clear of the imputation of any deception. The conduct of the person seeking it must be free from all blame; misrepresentation, even as to a small part only, prevents him from applying to a court of equity for relief.

The reason for this is obvious: if it be so obtained, the contract is both void at law and in equity. When an agreement has been obtained by fraud, is the effect to alter it partially, to cut it down, or modify it only? No; it vitiates it in toto; and the party who has been drawn in is totally absolved from obligation.

There are many cases where, although a contract cannot be literally performed in all its parts, 'the court will modify it, attending to the substance of it, and carry it into execution, relieved from the collateral circumstances that form the difficulty. There are cases of this kind where, from lapse of time it has become unconscientious to insist upon the agreement modo et forma, or where there happens to be a small deficiency in the number of acres. The contract becomes inoperative at law, and cannot be strictly performed; yet the court will sustain it, dispensing with the articles that are not essential to the substance. But this is only where there has been a perfect bona fides; there is no case where it has been done at the instance of a plaintiff who has practiced any misrepresentation. The principle is that the party is barred, personally barred.

If it were otherwise, and if a contract under these circumstances were only to be altered pro tanto, and only the part thus obtained were to be taken out of it, what encouragement would be offered to fraud? The party, if not found out, would gain his object; and if detected, would have the benefit of the contract in the same manner as if he had practiced no deception. The court has, therefore, settled that he must come with perfect propriety of conduct. If he does not, that alone is a sufficient answer to him.

When misrepresentation is alleged the court takes into consideration the sort of puffing or speculative commendation which is held excusable in a vendor.

According to the decisions of courts of equity it was not necessary, in order to set aside a contract obtained by material false representation, to prove that the party who obtained it knew at the time when the representation was made that it was false. It was put in two ways either of which was sufficient. One way of putting the case was: "A man is not allowed to get a benefit from a statement which he now admits to be false. He is not to be allowed to say, for the purpose of civil jurisdiction, that when he made it he did not know it to be false; he ought to have found out that before he made it." The other way of putting it was this: "Even assuming that moral fraud must be shown in order to set aside a contract, you have it where a man, having obtained a beneficial contract by a statement which he now knows to be false, insists on keeping that contract. To do so is a moral delinquency; no man ought to seek to take advantage of his own false statements." The rule in equity was settled, and it does not matter on which of the two grounds it was rested.

As regards the rule of common law, there is no doubt it was not quite so wide. There were cases in which, even at common law, a contract could be rescinded for misrepresentation although it could not be shown that the person making it knew the representation to be false.

If a man is induced to enter into a contract by false representation, it is not a sufficient answer to him to say, "If you had used due diligence you would have found out that the statement was untrue. You had the means afforded you of discovering its falsity and did not choose to avail yourself of them." It is a settled doctrine of equity, not only as regards specific performance but also as regards rescission, that this is not an answer unless there is such delay as constitutes a defence under the statute of limitations. Under the statute, delay deprives a man of his right to rescind on the ground of fraud, and the only question to be considered is from what

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