time the delay is to be reckoned. It has been decided, and the rule was adopted by the statute, that the delay counts from the time when by due diligence the fraud might have been discovered.

Nothing can be plainer on the authorities in equity than that the effect of false representation is not got rid of on the ground that the person to whom it was made has been guilty of negligence. One of the most familiar instances in modern times is where men issue a prospectus in which they make false statements of the contracts made before the formation of a company, and then say that the contracts themselves may be inspected at the offices of the solicitors. It has always been held that those who accepted those false statements as true were not deprived of their remedy merely because they neglected to go and look at the contracts.

Another instance is where a vendor makes a false statement as to the contents of a lease, as, for instance, that it contains no covenant preventing the carrying on of the trade which the purchaser is known by the vendor to be desirous of carrying on upon the property. Although the lease itself might be produced at the sale, or might have been open to the inspection of the purchaser long previously to the sale, it has been repeatedly held that the vendor cannot be allowed to say, "You are not entitled to give credit to my statement." It is not sufficient, therefore, to say that the purchaser had the opportunity of investigating the real state of the case, but did not avail himself of that opportunity.

When a person makes a material misrepresentation to another to induce him to enter into a contract, and the other enters into that contract, it is not sufficient to say that the party to whom the representation is made does not prove that he entered into the contract relying upon the representation. If it is a material representation calculated to induce him to enter into the contract, it is an inference of law that he was induced by the representation to enter into it, and in order to take away his title to be relieved from the contract on the ground that the representation was untrue, it must be shown, either that he had knowledge of the facts contrary

to the representation, or that he stated in terms or showed clearly by his conduct that he did not rely on the representation.

It is often fallaciously assumed that a statement of opinion cannot involve the statement of a fact. In a case where the facts are equally well-known to both parties, what one of them says to the other is frequently nothing but an expression of opinion. The statement of such opinion is in a sense a statement of a fact about the condition of the man's own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion.

A landlord knows the relations between himself and his tenant; other persons either do not know them at all, or do not know them equally well, and if the landlord says that he considers that the relations between himself and his tenant are satisfactory, he really avers that the facts peculiarly within his knowledge are such as to render that opinion reasonable.

In order to defeat a suit for the specific performance of a contract to convey land, it is not necessary that the fraud must be productive of damage either to the vendor or to third parties. If the misrepresentation was intentional and made for the purpose of deceiving the vendor, and the vendor relies upon it, and was deceived by it, and would not have entered into the contract but for the fact that he was so deceived, equity will not enforce the contract whether it be accompanied by damage or not.

An action at law cannot be maintained for fraud unless accompanied by damage, and a court of equity will not set aside a contract obtained through fraud unless it is productive of injury. But the latter does not apply to suits for specific performance. It is well settled that a court of equity may refuse specific performance of a contract which it would not set aside. Although the court will refuse to destroy the

contract, it will not further in any way the fraudulent design.

After stating the general rule that fraud must be accompanied by damage and that "there are many duties that belong to the class of imperfect obligations, which are binding in conscience, but which human laws do not and cannot undertake directly to enforce," Chanceller Kent goes on to say: "But where the aid of a court of equity is sought to carry into execution such a contract, then the principles of ethics have a more extensive sway." This statement is adopted by Story.

Kerr, in his work on fraud and mistake, says: "Where the aid of a court of equity is sought by way of specific performance of a contract, the principles of ethics have a more extensive sway than where a contract is sought to be rescinded. . . . ... Where a party calls for specific performance, he must, as to every part of the transaction, be free from every imputation of fraud or deceit and must show that his conduct has been clear, honorable, and fair."

Hovenden says: "Specific performance of an agreement is never compelled unless the case is clear of the imputation of any deception; the conduct of the party seeking it must be free from all blame."

[Mistake.]

In cases of specific performance a court of equity exercises a discretion, and knowing that a party may have such compensation as a jury will award him in the shape of damages for the breach of contract, will not in all cases decree a specific performance; as in cases of intoxication, although the party may not have been drawn in to drink by the plaintiff, yet, if the agreement was made by one of the parties while in a state of intoxication, the court will not decree a specific performance.

If a defendant submits that he entered into a contract by error and mistake, it would not be equitable to compel him to perform it, whatever may be the responsibility to which he is left liable at law, if it is a valid contract.

Equity will refuse to interfere and leave the claimant to his remedy at law when the defendant, asserting that he was deceived or mistaken and led to execute an agreement different from that which he supposed he was executing. He may show that the agreement is void, by proof of fraud or duress, which would avoid it at law; but he may also show that, without any gross laches of his own, he was led into a mistake, by an uncertainty or obscurity in the descriptive part of the agreement, by which he, in fact, mistook one line or one monument for another, though not misled by any representation of the other party, so that the agreement applied to a different subject from that which he understood at the time; or that the bargain was hard, unequal and oppressive, and would operate in a manner different from that which was in the contemplation of the parties when it was executed.

To establish either of these grounds of defence, the burden of proof is plainly on the defendant; and to bring his case within the former, he must show such mistake on his part, or some misrepresentation on that of the complainant or his agent, seeking to enforce the performance of the contract. In doing this it is not competent for the defendant merely to aver that he was under a mistake as to the description of the route or other subject-matter of agreement, or, when the description was precise and clear, that he signed the agreement without reading or hearing it where he had the means offered him of doing so. He must show an honest mistake not imputable to his own gross negligence.

Where a man has stipulated, for a certain consideration, to permit a company to construct a road over his land by any one of two or more routes, at their option, it is not competent for him afterwards to resist the performance of his agreement by showing that he was induced to believe, either by his own notions or by the representation of others, as to the preference of one over the other, that a particular one was adopted which he did not expect; nor would this result be affected, if the other party, or their agents, had made such representation, as to the probability of adopting

one route in preference to the other, or of the relative advantages of each. Having, by the terms of the contract, stipulated for the right to adopt either and stipulated to pay a consideration for such right of choice, all representations respecting the probability of their adopting one rather than the other, must be considered as merged in the agreement; and if in fact, the one route would cause more damage, and the land owner intends to claim larger compensation in one case than in the other, the alternative must be stipulated for in the agreement itself.

Equity will not enforce the specific performance of a contract the terms of which are ambiguous, and where, by adopting the construction put upon them by the plaintiff they would have an effect not contemplated by the defendant, but would compel him to include in the conveyance property not intended or believed by him to come within the terms of the contract.

It is not the duty of the vendor to say to the purchaser, "You will not be able under these covenants to effect your object"; it is for the purchaser to ascertain for himself whether what he purchased will answer the purpose. It is impossible to get out of a contract by saying, "I told the vendor what my intention was, and he failed to give me his opinion, derived from information which was common to both, that I could not carry my intention into effect." In every case a purchaser has some private reason for purchasing and also for changing his mind afterwards, when he does

So.

It is of the greatest importance that it should be understood that the most perfect truth and the fullest disclosure should take place in all cases where the specific performance of a contract is required, and that if this fails, even without any intentional suppression, the court will grant relief to the man who has been thereby deceived, provided he has acted reasonably and openly.

If there is written evidence of a contract, and the meaning on the face of it is quite plain, a party cannot defend himself by saying "I did not mean precisely that, I meant something