125 Va. 546 | Va. | 1919
after making the foregoing statement, delivered the following opinion of the court:
In all of the cases above alluded to, there occurs a failure of the vendee to make the payments of purchase money at the times at which, when the contract of sale was entered
3. It is unnecessary, however, for us to determine, in the case before us, whether the contract of sale falls within the rule first or the rule last above mentioned. ' It may be conceded that in accordance with the evidence in the record the mind of none of the parties ever assented to a contract of sale which was silent as to the date when the vendees were to take possession; that the silence of the written contract of sale on the subject of interest was not due to a mutual mistake of all of the parties since Simpson certainly intended that it should be silent on that subject; and that the contract of sale as embodied in writing, when construed along with the lease of which, it was a part, must be held to have fixed a date for the taking of possession by the ven-dees as purchasers, namely, October 26, 1915, being the day immediately following the end of the demise under the lease. But this would not be conclusive of the case in favor of the appellants.
As said in 2 Pomeroy’s Eq. Jur., sec. 860, supra: .“Wherever the defendant’s mistake was, either intentionally or not, induced or made probable or éven possible, by the acts or omissions of the plaintiff, then, on the plainest principles of justice, such error prevents a specific performance of the agreement” — in accordance with its precise terms.
And again in the same section of tiie learned work just quoted, it is said: “It is * * * a well-settled rule, that in suits for the specific enforcement of agreements, even when written, the defendant may by means of parol evidence show that through the mistake of * * * either of the parties, the writing does not express the real agreement, or that the agreement was entered into through a mistake as to the subject matter or as to its terms.”
The decree under review will, therefore, be affirmed.
Affirmed.