{I) See Horsfall v. Thomas, 1 H. & C. 90, dissented from by Cock-burn, C. J., Smith v. Hughes, L. R. 6 Q. B. 597, 605, and doubted in Benjamin on Sale, 385, 2nd ed. The decision seems, however, to be in accordance with the law laid down in the cases cited above, p. 682, nn. (k), (I), and by Selborne, C, in Coaks v. Boswell, 11 App. Cas. 232, 236. And see Pollock on Torts, 285, 5th ed.

Misleading conduct.

Specific performance may be resisted in some cases where the contract cannot be rescinded.

Hope v. Walter.

(m) See Sug. V. & P. 333 - 335.

(n) Walters v. Morgan, 3 De G. F. & J. 718, 724 ; Coaks v. Bos-well, 11 App. Cas. 232, 235, 236.

(o) See Kennedy v. Panama, Sec.c. Mail Co., L. R. 2 Q, B. 580; Re Banister, Broad v. Munton, 12 Ch. D. 131; above, pp. 160, 165

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(p) Hope v. Walter, 1900, 1 Ch. 257, reversing the decision of Cozens-Hardy, J., 1899, 1 Ch. 879, as to specific performance, and affirming it on the other point.

(q) Above, pp. 681,686.

Specific performance not granted where the thing sold is positively noxious in quality.

Purchase under a mistaken impression as to quality.

Not only is there no legal obligation upon a vendor of land to disclose to the purchaser any defects known to him in the quality of the thing sold, but further the vendor is not bound to disabuse the purchaser of any erroneous belief, which the purchaser has formed, and which the vendor knows that the other has formed, as to the quality of the purchased property (u). A vendor may well sell a house, which has got dry rot in all the woodwork and is badly drained, to a purchaser, who knows nothing of these defects, but believes to the knowledge of the vendor that the house is in good repair and well drained, and yet the purchaser will not be entitled to claim the rescission of the contract; provided always that the vendor made no representation as to the quality of the thing sold, and did not actively conceal the defect. And this is equally the case, even though the purchaser suppose the vendor to be warranting the quality of the thing sold, provided that the vendor were not aware of the purchaser's belief in this respect and had done nothing to induce it. So long as the vendor knows no more than that the purchaser is mistaken as to the quality, the purchaser's further erroneous belief that the vendor is warranting the quality is no ground for his avoidance of the contract (x). And it does not appear that the above circumstances, namely, the vendor's knowledge of the purchaser's erroneous belief or the purchaser's further mistaken impression that the vendor is warranting the quality (if not known to the vendor), are of themselves a sufficient ground to enable the purchaser to resist the specific performance of the contract (y), unless he can move the Court on the grounds of unfairness or hardship (3). If, however, the vendor know that the purchaser believes him to be warranting the quality of the thing sold, and agree to the contract without the intention of warranting according to the purchaser's expectation, hut without disabusing the purchaser of his belief, in that case there is no true consent of the parties, and on this ground the contract is void (a). The same law seems applicable where one, who knows that there is a mistake in the terms of an offer, accepts it unconditionally and without correcting the mistake, being minded to take advantage of the other's error. Thus if A. offer to sell to B. Blackacre and Whiteacre for 2,000l., and B., knowing that A. really means to offer Blackacre only or to ask 4,000l., but intending to hold A. to the letter and not to the spirit of his proposal, at once close with the offer, it is thought that A. is not estopped from proving his mistake, and the contract is void for want of true consent. For B. knew that A. thought that B. was promising to take Blackacre only or to pay 4,000l.; and he ought not to have sought to take advantage of such a mistake (b). In a case like this the acceptance of the offer, with knowledge of the mistake in its terms, appears to be plainly fraudulent; and the acceptor may not take advantage of his own wrong. The other party therefore has the choice of two alternatives. He may either treat the contract as altogether void by reason of his mistake, or he may affirm and enforce the contract according to the terms which he had really intended to propose, treating the acceptance as an assent to a contract, of the real terms of which the acceptor had notice, and claiming to have the written agreement rectified on account of a mistake common to both parties in the expression of its terms. And if he choose this alternative, the acceptor will be estopped by his conduct from setting up the want of true consent as a ground for avoiding the contract, or from objecting to rectification on the ground that the mistake was made by the other party alone, and was not common to both of them (c).

Vendor not bound to disabuse purchaser of his erroneous belief as to the quality of the thing sold.

(r) See S. C, 1900, 1 Ch. 259.

(s) See above, pp. 680-684.

(t) See Corn foot v. Fowke, 6 M. & W. 358, 380, 381; Chester v. Powell, 52 L. T. 722, 723. But apparently this fact would not be sufficient ground for rescinding the contract; see above, p. 682 and n. (k); Ward v. Hobbs, 4 App. Cas. 13, 24, 25, 29.

It does not alter the case that the purchaser believed the vendor to bo warranting the quality, if the vendor did not know this.

But if the vendor knew of this belief, the contract is void for want of true consent.

(u) Keates v. Cadogan, 10 C. B. 591; Edwards- Wood v. Majori-banks, 7 H. L. C. 806, 809; Smith v. Hughes, L. R. 6 Q. B. 597, 607; Fry, Sp. Perf. Sec. 705, 713: Turner v. Green, 1895, 2 Ch. 205.

(x) See Smith v. Hughes, L. It. 6 Q, B. 597.

(y) See cases cited above, p. 684, n. (t).

(z) Above, p. 685.

Acceptance of an offer which the acceptor knows to be mistaken.