ports on the face of the document to have been made. There was a time when a man was bound if his seal was affixed to an instrument by a stranger against his will. But the notion that one who has gone through certain forms of this sort, even in his own person, is bound always and unconditionally, gave way long ago to more delicate conceptions. So it is settled, at least in equity, that this particular kind of parol evidence, that is to say, evidence of mutual mistake as to the meaning of the words used, is admissible for the negative purpose. And this principle is entirely consistent with the rule that you cannot set up prior or contemporaneous oral dealings to modify or override what you knew was the effect of your writing.

[Mistake Must Be Mutual.]

A court of equity has no power to alter or reform an agreement between parties, since this would be in truth a power to contract for them, but merely to correct the writing executed as evidence of the agreement, so as to make it express what the parties actually agreed to. It follows that the mistake which it may correct in such writing must be, as it is usually expressed, the mistake of both parties to it; that is, such a mistake in the draughting of the writing as makes it convey the intent or meaning of neither party to the contract. If the court were to reform the writing to make it accord with the intent of one party only to the agreement, who averred and proved that he signed it, as it was written, by mistake, when it exactly expressed the agreement as understood by the other party, the writing when so altered, would be just as far from expressing the agreement of the parties as it was before; and the court would have been engaged in the singular office, for a court of equity, of doing right to one party, at the expense of a precisely equal wrong to the other.

Besides the power to reform a writing so as to make it express the agreement of both parties as it was designed to do, a court of equity has also power to rescind and cancel an agreement at the request of one party, upon the ground that,

without negligence, he entered it through a mistake of facts material to the contract, when it can do so without injustice to the other party.

Where there has been no intermixture of fraud or surprise to put an applicant for relief off his guard, the court must invent a new head of equity before it can interpose to save him, to the injury of others, against the effects of his own carelessness.

Courts of equity do not rectify contracts; they may and do rectify instruments purporting to have been made in pursuance of the terms of contracts. But it is always necessary for a plaintiff to show that there was an actual concluded contract antecedent to the instrument which is sought to be rectified; and that such a contract is inaccurately represented in the instrument.

There must be a mutual error to authorize the interposition of a court of equity and to warrant the reformation of a contract. To exercise this power, where one party has been in error and the other has correctly understood it, would be making a new contract for the parties, and would be doing injustice to the party who made no mistake. On this point two distinctions may be noted. (1) Those cases will be found to have in them the elements of honesty on the part of the one correctly understanding the contract. Where two parties enter into a contract, and an error is claimed to be correct by the other party, it cannot be amended as against the party correctly understanding it, he acting in good faith and supposing the other to have understood the contract as he did. This rule does not apply where there is fraud. Either fraud or mutual mistake will authorize the reformation. (2) In the consummation of an existing contract about the terms of which there was no dispute. When there has been a failure to perform it by the misunderstanding on the part of one of the parties of the effect of the instrument by which performance was attempted, a reformation is permitted in such case, although the mistake be not mutual.

To entitle a plaintiff to a reformation of a contract, he must prove that it was the intention of both parties to make

a contract such as he sought to have established, and that this intention was frustrated, either from some fraud, accident, or mutual mistake of the parties.

When the quantity is an essential element of the contract the presumption is that the price was fixed by both parties with reference to it, and when a shortage is discovered it is reasonable presumption that if the true quantity of the land had been known, the purchase-price would have been reduced to an amount corresponding to the deficiency in the land. It has been held that the introduction of the words "more or less," following the enumeration of the acres, was no obstacle to relief in equity upon the ground of mistake. The court said that those words in a contract or conveyance of land do not import a special engagement that the purchaser takes the risk of the quantity, and that, while their presence may render it more difficult to prove such a mistake as will justify the interference of equity, they are not equivalent to a stipulation that the mistake, when ascertained, shall not be a ground of relief.

The granting or refusing of equitable relief on the ground of mistake may depend, to some extent, on the fact whether the contract is executory or executed. The court might very well refuse the specific performance of a contract for the sale of land in respect to which a mistake is alleged, and leave the party to his remedy at law, when it would not interfere if the contract had been executed. But it cannot be maintained upon principle that where a mistake is admitted or proved, the fact that the title has passed and the purchase-money has been paid or secured precludes the court, on the mistake being discovered, from granting relief. The consummation of the transaction in ignorance of the mistake, without laches on the part of the party injured, gives to the other party no immunity from making recompense, nor does it deprive the court of the power to remedy the injustice.

If it is a case of common mistake-a common mistake as to one stipulation out of many provisions contained in a settlement or any other deed that upon proper evidence may

be rectified-the court has power to rectify, and that power is very often exercised.

In the class of cases called unilateral mistake, and there, if the court is satisfied that the true intention of one of the parties was to do one thing and he by mistake has signed an agreement to do another, that agreement will not be enforced against him, but the parties will be restored to their original position and the agreement will be treated as if it had never been entered into.

It is a well settled rule that a party who discovers some fact against which he needs equitable protection, like an error in a deed or a judgment rendered against him without notice, must use diligence in seeking equitable aid. But this is required for the purpose mainly of protecting other persons against loss by reason of the unasserted right. If the records show a title in a third person, that third person, even after notice, may convey to an innocent purchaser. In all these cases delay is likely to add to the complication, and make the equitable adjustment of rights more difficult.

Following a too common practice, some bills for relief go on with a sort of affidavit or narrative of the transacton, not setting out facts so much as the evidence of facts; as if stating the evidence by which a case is to be maintained is the same thing as stating the case itself. The difficulty with such practice is, that the court is frequently at a loss what a complainant means to state or charge, and upon what ground he seeks relief.

If an underwriter solicits a person to purchase of him indemnity against loss by fire, and if they unite in making a written draft of all the terms, conditions and stipulations which are to become a part of or in any way affect the contract, and if the underwriter promises to make and sign a copy thereof, and deliver it as the evidence of the terms of his undertaking, and if a material and variant condition is by mistake inserted, and the variant contract is delivered, and the stipulated premium is received and retained, the court will not hear the claim that he is entitled to the benefit of the variant condition where the other party had neither

actual nor imputed knowledge of the change. In his promise to make and deliver an accurate copy, there is justification before the law for the omission of the other party to examine the paper delivered, and for his assumption that there is no designed variance. A man is not, for his pecuniary advantage, to impute it to another as gross negligence that the other trusted to his fidelity to a promise of that character.

The rule of law that no person shall be permitted to deliver himself from contract obligations by saying that he did not read what he signed or accepted, is subject to this limitation, namely, that it is not to be applied in behalf of any person who by any word or act has induced the omission to read.

[Statute of Frauds as a Defence.]

If the rules restricting the administration of judicial remedies which are prescribed by the statute of frauds were to be disregarded in equity procedure, it would open the door to all the forms of fraud which that statute was intended to prevent. The statute is not merely a rule of evidence but a limitation of judicial authority to afford a remedy. It requires that contracts for the sale of lands, in order to be enforced by judicial proceedings, must be substantiated by some writing. This provision of law cannot be dispensed with merely for the reason that the want of such writing was occasioned by accident, mistake, or fraudulent representations, unless some other ingredient enters into the case to give rise to equities stronger than those which stand upon the oral character alone, which estop the other party from setting up that statute.

It makes no difference whether the want of a writing was accidental or intentional by way of refusal or by reason of mutual mistake, nor that there were false representations and a pretence of conveying the land, but a fraudulent evasion, by means whereof there was no conveyance in fact, and no proper written evidence of the agreement to convey. From the oral agreement there can be derived no legal right, either to have performance of its stipulations or written evidence of its terms. So long, therefore, as the effect of the