8 rmnmun Bmronrmn.
ments for street purposes, for the conveyance with covenants of war-
ranty, as provided for by the contract, would have bound defendant
to remove or vacate the streets, if any lawfully existed, or to pay to
complainant the damages resulting to it in consequence thereof. If
the award Hxed the price subject to an easement, and the contract
be specifically performed by the execution of a warranty deed as
therein provided, and now demanded by complainant, then the defend-
ant will be called upon to convey more than he is paid for. He would
convey free of all easements, and, if any are found to exist, would
be bound by his covenants to remove them. He would be paid only "
for the land subject to the easement.
Upon consideration of the proof we find that it clearly appears that
the arbitrator took into account at least one street in fixing the price
of the land, and reduced the price by the sum of $150, on account of
the same. In his own testimony he distinctly says: "If I had known
certain that that road did not come out, the award would have been
$3,500, instead of $3,350." And again: “If I had known certain
that no road would cross there, $3,500 was the net sum." And still
further: "The award would have been $3,500 instead of $3,350 for
the tract, as the papers show that I had seen, if I had known that
there wasn’t any road there to be taken off. That I say."
It is clear that the duty of the arbitrator was to appraise the whole
tract without inquiry as to the incumbrances or easements. These
were to be removed by the grantor. It is also clear that in deducting
$150 from the value of the tract on account of easements, he departed
from or varied the contract. In order to enforce a contract by spe-
cific performance, the court must be enabled to specifically perform
every part of it. We cannot decree a specific performance with a
variation. 1 Sugd. Vend. 221; Jordan v. Sawkins, 4 Brown, Ch.
477; Nurse v. Seymour, 13 Beav. 254; Owrnochan v. Oh*r·ist·ie, 11
Wheat. 446. The award is also bad for the reason that it does not
cover the entire matter submitted, to-wit, the value of the whole tract
without reference to easement. ·
It is well settled that a failure to include in the appraisement any
part of the property is fatal to the award. Morse, Arb.361; Emery
v. Wase, 5 Ves. 846; S. C. on appeal, 8 Ves. 505; Nickels v. Hancock,
7 De Gex, M. & G. 300, 318. It matters not that the portion of the
property which was omitted from the appraisement was small in com-
parison with that which was appraised. It is enough if it was a
substantial and material portion of the property, and whether in the
present case it was worth only $150, or more or less than that sum,
is immaterial. Nor can the award be now amended by adding to the
appraisement the value of the property omitted. The parties agreed
to be bound, not by a price to be fixed by any court, but by the judg-
ment of the arbitrator named, upon the entire matter submitted.
Should the court now attempt to add anything to the award it would
violate the agreement, instead of enforcing it specifically. Nickels v.