Schmidt v. Livingston
3 Edw. Ch. 213
New York Court of Chancery
1838
Check Treatment
The Vice-Chancellor :

This court does not interfere to compel a specific performance, where, from any circumstances of accident, mistake or fraud attending the making of the contract, it would be inequitable and unjust to exact a performance. The principle on which this court withholds its aid in such cases is shown in Clowes v. Higginson, 1 Ves. and Beames, 524, and in the cases there cited.

The facts disclosed in the' bill and answer (and the latter, although replied to, is, to a considerable extent, evidence, at any rate, where not disproved) appear to me to bring the present within the above case of Clowes v. Higginson, in respect to the mistake in the description and contents of one of the lots. The defendant did not intend to sell a lot, except it lay within parallel lines and about the width of twenty-five feet; and it was such a lot as the complainant must be supposed to have purchased, since the lithographic map used at the sale delineated the lots to be sold in no other way. To carry into effect a sale embracing the lot No. 45, as it is now found to exist on the map of the “ Depeyster Tract," would be to effectuate what *215the parties did not intend and to execute an agreement to an extent never made. Besides, the complainant has once rejected and repudiated the deed offered to him by the defendant and must be deemed to have abandoned the purchase. After having discovered the important secret as to the dimensions of lot No. 45 on the original map, he has no right to resume it and compel the delivery of the deed. The case of Clowes v. Higginson is a sufficient authority for denying this relief; and following that case as a precedent, the bill must be dismissed, but without costs and without prejudice to the complainant’s rights at law to recover his deposit of the auctioneer and the money paid to the defendant on account, which, by his answer, the latter shows he was willing and offered to refund, with interest.