Weston J.
The plaintiff, by a bill in equity, seeks the specific performance of an agreement in "writing set forth in the bill, ’ipon certain considerations averred ; stating further that he has been and still is ready to perform what the agreement requires on his part. ; and .praying that the court would decree that the defendant should make execute and deliver a deed to the plain.» [394]*394tiff, conveying thirty feet of land bought by the defendant, according to the written agreement.
The defendant, in his answer, admits the written agreement set forth in the bill; he admits also a sufficient consideration therefor. He avers, however, that in a conversation between him and the plaintiff, in which the plaintiff “expressed his desire to obtain the use of a passage way upon a part of the [King] land, extending in width thirty feet from the front corner of the plaintiff's house, which house they supposed to stand about ten feet from the line of the land aforesaid, and running back from the road on which said land fronts, to a certain log in the bank, at high water mark, and no further, for the express and only purpose of giving to the plaintiff a more convenient approach to his house, and the outbuildings thereto belonging, by widening the plaintiff’s passage way from ten to thirty feet ; but so as to take but twenty feet in width of the land, then about to be purchased by this defendant; to which this defendant assented.” And he further states, that “ there was at no time any conversation between them, relative to said land, and previous to said time of sale, of an import in any wise other than, or contrary to the conversation aforesaid, and that in pursuance of said conversation, and with the sole intent to carry the same into effect, the paper writing aforesaid was hastily drawn up and signed by said parties, without the aid or advice of counsel learned in the law; and in which a material part, to wit the extent of said passage, was omitted to be inserted.”
Testimony has been taken on both sides, in pursuance of commissions, issuing from this court, and in answer to interrogatories and cross interrogatories propounded by the parties. The counsel for the plaintiff objects to a part of the testimony elicited by the defendant ; and the counsel for the defendant objects to the parol explanations and' the verbal agreement, which appears in the testimony on the part of the plaintiff.
It cannot be necessary to cite authorities to prove that, at common law, parol testimony is inadmissible to add to, vary, or contradict written evidence. And the rules of evidence are the same in courts of law and of equity. Therefore parol evidence, which goes to alter a written agreement, cannot be received in [395]*395a court of equity, any more than in a court of law. Clinan v. Cooke 1 Sch. & Lef. 38, 39, and the cases there cited. Marquis of Townsend v. Stangroom, 6 Ves. 328. Woollam v. Hearn, 7. Ves. 211. Higginson v. Claves 15 Ves. 516. Moran v. Hays 1 John. Ch. Rep. 343.
But when equity is called upon to exercise its peculiar juris diction, by decreeing a specific performance, the party to be charged is to be let in to show that, by fraud, mistake, or surprise, the written contract does not contain the terms really agreed. Woollam v. Hearn, Townsend v. Stangroom and Clinan v. Cooke, before cited, Clarke v. Grant, 14 Ves. 519. And this being done to the satisfaction of the court, the plaintiff will not be enritled to a decree for specific performance. If the plaintiff, therefore, in the case before us, is entitled to the relief he seeks, it must be upon the written contract as it stands. The defendant, how ever, may be permitted to show that, by reason of fraud, surprise, or mistake, it does not truly exhibit what was agreed between the parties.
The defendant resists the decree prayed for, upon several grounds-, — viz. that the contract is too vague and uncertain in its terms, to justify a decree for specific performance ; — that it does not, upon a sound construction, embrace so much of the King land, as is contended for by the plaintiff; and, lastly, that however that, may be, it ought not to be enforced, because, by mistake or inadvertency, there is an omission of a material part of tvhat was really agreed.
The bill avers, and the answer admits, that the piece of land, formerly the property of Cyrus King, deceased, purchased by the defendant, is hounded on the road leading from Saco falls to Winter Harbor, and extends thence toSaeoriver, between ferry-lane on the north, and the land of the plaintiff on the south. The extent of what he is to have north of his house is given in the written agreement ; in the other direction, towards Saco river, it is not given ; but it was to be a part of the King land ; and as there are no restrictive words, it must be understood to extend as far as that land extended, namely, to the river. There was no intermediate point given or implied, as a boundary ; and with[396]*396out giving it this construction, it must be held to be void for uncertainty; which is not to be done, if the intention of the parties can be collected, by any fair implication. The piece, from which the plaintiff’s part was to be severed, was understood. His part is expressly limited to a certain number of feet in one direction ; in the other, it is not limited ; it must then be commensurate with the piece itself.
It is said that the quantity of interest intended,whether for life x>r in fee, is uncertain. But King owned the estate in fee ; that interest the guardian sold to the defendant; and the plaintiff was to participate in the purchase. He is entitled, therefore, to as large an estate in the easement, as the defendant received, and had it in his power to grant, which is an estate in fee.
A more difficult question is presented in respect to the width of the piece, which the plaintiff was to have. If the passage way, of thirty feet tobe kept open, is to adjoin the house, as stated in the agreement, it would require but twenty feet of the King land ; to which.it should be limited, according to the construction contended for by the defendant. But notwithstanding this part of the description, connected with the fact, that the north side of the plaintiff’s house is ten feet south of the line of the King land, a majority of the court are of opinion that the agreement fairly implies, that the plaintiff was to have thirty feet of that land. That land was the subject matter of the agreement. The plaintiff was to have apart of it. He was to receive it from the defendant. It was to be of that part which was northerly of the plaintiff’s house ; and he was to have thirty feet at a fair and equitable price, the amount of the whole purchase indicating the scale of value, by which it was to be estimated. That which was to be estimated was the thirty feet ; and it was what the plaintiff was to have, not what lie possessed. Indeed no one reading the agreement, without reference to any extraneous fact, could doubt that the number of feet stated was intended to be taken from that, which the defendant designed to purchase. But that land in fact not adjoining the plaintiff’s house, he cannot have the stated quantity located, so as to correspond in every particular with the description given. Rejecting the words in [397]*397the agreement, “ adjoining said Bradbury’s
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Weston J.
The plaintiff, by a bill in equity, seeks the specific performance of an agreement in "writing set forth in the bill, ’ipon certain considerations averred ; stating further that he has been and still is ready to perform what the agreement requires on his part. ; and .praying that the court would decree that the defendant should make execute and deliver a deed to the plain.» [394]*394tiff, conveying thirty feet of land bought by the defendant, according to the written agreement.
The defendant, in his answer, admits the written agreement set forth in the bill; he admits also a sufficient consideration therefor. He avers, however, that in a conversation between him and the plaintiff, in which the plaintiff “expressed his desire to obtain the use of a passage way upon a part of the [King] land, extending in width thirty feet from the front corner of the plaintiff's house, which house they supposed to stand about ten feet from the line of the land aforesaid, and running back from the road on which said land fronts, to a certain log in the bank, at high water mark, and no further, for the express and only purpose of giving to the plaintiff a more convenient approach to his house, and the outbuildings thereto belonging, by widening the plaintiff’s passage way from ten to thirty feet ; but so as to take but twenty feet in width of the land, then about to be purchased by this defendant; to which this defendant assented.” And he further states, that “ there was at no time any conversation between them, relative to said land, and previous to said time of sale, of an import in any wise other than, or contrary to the conversation aforesaid, and that in pursuance of said conversation, and with the sole intent to carry the same into effect, the paper writing aforesaid was hastily drawn up and signed by said parties, without the aid or advice of counsel learned in the law; and in which a material part, to wit the extent of said passage, was omitted to be inserted.”
Testimony has been taken on both sides, in pursuance of commissions, issuing from this court, and in answer to interrogatories and cross interrogatories propounded by the parties. The counsel for the plaintiff objects to a part of the testimony elicited by the defendant ; and the counsel for the defendant objects to the parol explanations and' the verbal agreement, which appears in the testimony on the part of the plaintiff.
It cannot be necessary to cite authorities to prove that, at common law, parol testimony is inadmissible to add to, vary, or contradict written evidence. And the rules of evidence are the same in courts of law and of equity. Therefore parol evidence, which goes to alter a written agreement, cannot be received in [395]*395a court of equity, any more than in a court of law. Clinan v. Cooke 1 Sch. & Lef. 38, 39, and the cases there cited. Marquis of Townsend v. Stangroom, 6 Ves. 328. Woollam v. Hearn, 7. Ves. 211. Higginson v. Claves 15 Ves. 516. Moran v. Hays 1 John. Ch. Rep. 343.
But when equity is called upon to exercise its peculiar juris diction, by decreeing a specific performance, the party to be charged is to be let in to show that, by fraud, mistake, or surprise, the written contract does not contain the terms really agreed. Woollam v. Hearn, Townsend v. Stangroom and Clinan v. Cooke, before cited, Clarke v. Grant, 14 Ves. 519. And this being done to the satisfaction of the court, the plaintiff will not be enritled to a decree for specific performance. If the plaintiff, therefore, in the case before us, is entitled to the relief he seeks, it must be upon the written contract as it stands. The defendant, how ever, may be permitted to show that, by reason of fraud, surprise, or mistake, it does not truly exhibit what was agreed between the parties.
The defendant resists the decree prayed for, upon several grounds-, — viz. that the contract is too vague and uncertain in its terms, to justify a decree for specific performance ; — that it does not, upon a sound construction, embrace so much of the King land, as is contended for by the plaintiff; and, lastly, that however that, may be, it ought not to be enforced, because, by mistake or inadvertency, there is an omission of a material part of tvhat was really agreed.
The bill avers, and the answer admits, that the piece of land, formerly the property of Cyrus King, deceased, purchased by the defendant, is hounded on the road leading from Saco falls to Winter Harbor, and extends thence toSaeoriver, between ferry-lane on the north, and the land of the plaintiff on the south. The extent of what he is to have north of his house is given in the written agreement ; in the other direction, towards Saco river, it is not given ; but it was to be a part of the King land ; and as there are no restrictive words, it must be understood to extend as far as that land extended, namely, to the river. There was no intermediate point given or implied, as a boundary ; and with[396]*396out giving it this construction, it must be held to be void for uncertainty; which is not to be done, if the intention of the parties can be collected, by any fair implication. The piece, from which the plaintiff’s part was to be severed, was understood. His part is expressly limited to a certain number of feet in one direction ; in the other, it is not limited ; it must then be commensurate with the piece itself.
It is said that the quantity of interest intended,whether for life x>r in fee, is uncertain. But King owned the estate in fee ; that interest the guardian sold to the defendant; and the plaintiff was to participate in the purchase. He is entitled, therefore, to as large an estate in the easement, as the defendant received, and had it in his power to grant, which is an estate in fee.
A more difficult question is presented in respect to the width of the piece, which the plaintiff was to have. If the passage way, of thirty feet tobe kept open, is to adjoin the house, as stated in the agreement, it would require but twenty feet of the King land ; to which.it should be limited, according to the construction contended for by the defendant. But notwithstanding this part of the description, connected with the fact, that the north side of the plaintiff’s house is ten feet south of the line of the King land, a majority of the court are of opinion that the agreement fairly implies, that the plaintiff was to have thirty feet of that land. That land was the subject matter of the agreement. The plaintiff was to have apart of it. He was to receive it from the defendant. It was to be of that part which was northerly of the plaintiff’s house ; and he was to have thirty feet at a fair and equitable price, the amount of the whole purchase indicating the scale of value, by which it was to be estimated. That which was to be estimated was the thirty feet ; and it was what the plaintiff was to have, not what lie possessed. Indeed no one reading the agreement, without reference to any extraneous fact, could doubt that the number of feet stated was intended to be taken from that, which the defendant designed to purchase. But that land in fact not adjoining the plaintiff’s house, he cannot have the stated quantity located, so as to correspond in every particular with the description given. Rejecting the words in [397]*397the agreement, “ adjoining said Bradbury’s house,” the laud to be conveyed may be understood and located ; and the object, which the parties manifestly had in view, the one to convey, and the other to receive, a certain and definite part of the contemplated purchase, may be carried into effect. If these words are retained, and regarded as the leading and essential part of the description, the defendant could convey no land, which would adjoin the plaintiff’s house ; and if one third of the passage way was to be furnished by him, the quantity which he would receive of the defendant, to be estimated upon the principles stated, would be a different one from -that specified in the agreement. These words therefore may be disregarded, ns they are not essential to ascertain the estate to be conveyed, and as they are inconsistent with other parts of the description, which indicate, with more certainty, the general intent of the parties. The case of Worthington v. Hylyer, 4 Mass. 196, may be cited as justifying this construction.
If the defendant made the purchase, that part which he was to reserve to himself, would adjoin the contemplated passage way on the south. It was to be kept open, and would be for their joint benefit and accommodation ; but if it was to consist in part of laud, which the plaintiff before owaed, no interest in that part could be secured to the defendant, in the conveyance to be by him made to the plaintiff; and it does not appear, either from the agreement, or the consideration proved on the part of the plaintiff, that he w as to execute any instrument to the defendant. The consideration was, that the plaintiff would forbear to interfere, by bidding at the sale, and would pay, for the part he was to have, a fair proportion of what might be given for the whole.
It remains to determine, whether there was any such mistake in the agreement, as is set forth in the answer. It is there stated that the plaintiff wanted only twenty feet of the /¿mg'land, and that it was this quantity alone, which the defendant consented that he might have. From an examination of the testimony, it appears that this suggestion is not only unsupported by proof, but that it is expressly disproved. Some of the witnesses depose that the plaintiff said he wanted Hie land for a road or passage [398]*398way, or principally for a passage way, but none pf them say that it was to take twenty feet only of the King land, or thirty feet from the house. On the contrary, Jacob Bridges deposes that the defendant told the plaintiff he should have as much as he wanted, and that the plaintiff replied he wanted thirty feet from his line. Elias Bradbury deposes that the same conversation took place between the parties, when the agreement was signed. Daniel Goodwin also testifies to a similar conversation.
It is further stated in the answer, that it was agreed between the parties, that the plaintiff should go no further than to a certain log in the bank, at high water mark. Upon this point Noah H. Tibbits deposes that on the morning of the sale, he heard the plaintiff tell the defendant that he wanted only to go to the high water mark. Samuel Floyd and Levi Floyd testify that, after the sale, it was agreed between the parties, that the plaintiff should run, the one says to the corner, and the other to the cap-sill, of the plaintiff’s wharf. Samuel Floyd also states, that it was agreed that Fairfield should make the survey ; and Bridges says that whenFairfield came for that purpose, the plaintiff appeared to be satisfied with what he supposed to be the defendant’s offer; until Fairfield either shewed the defendant’s proposition to the plaintiff on pape,r, or explained it to him, when he said he expected to go to low water mark, and thought that was the understanding between them ; but the defendant directing the surveyor to run only to high water mark, the plaintiff refused to-acquiesce in this construction of the agreement. Charles Mams deposes that .subsequent to the purchase, he heard a conversation between the parties, in which the word capsill was introduced, as he thinks by both, but he does not recollect what the conversation was.
Other witnesses testify, that the plaintiff claimed to low water mark. Bridges deposes that prior to the sale, he heard the plaintiff say he wanted the water privilege, as much as the upland. Daniel Goodwin says that in a conversation, which took place between the parties in his presence, the defendant tried to induce the plaintiff to consent not to go to low water mark, but to the end of his wharf only, and he would make a deduction from the [399]*399price; but that the plaintiff refused, and said he wanted what they had agreed for. The witness adds that the defendant did not at that time pretend to deny that, by the agreement, the plaintiff was to go to low water mark ; but said that thirty feet in width, and to the end of the wharf, was as much as the plaintiff could want.
The answer, being directly disproved in a material part, cannot be regarded as having much weight in verifying the facts stated in it; and the proof offered to show that the plaintiff agreed to stop at high water mark, repelled as it is by counter proof on his part, is far from being satisfactory.
In the case of Townsend v. Stangroom, before cited, Ld. Eldon, although he admitted evidence of surprise, in defence to a bill seeking a performance in specie, remarked that they who produce evidence of mistake or surprise in opposition to a specific performance, undertake a case of great difficulty.
Upon the whole, although it is be regretted that the written agreement is not more explicit in its terms, a majority of the court, are of opinion that the points taken in defence have not, been sustained ; and that the plaintiff is entitled to the relief sought in the bill