250

MISTAKE

agreement in the case at bar had been for the sale and purchase of 5 tons of steel, and, in reducing the contract to writing, the parties had, by an unnoticed mistake, inserted "15 tons" instead of "5 tons," this would have been a mistake of fact entitling the defendant to the aid of a court of equity. In the case at bar the parties actually agreed upon what may, for brevity, be called a conditional purchase and sale, and upon that only. In reducing the contract to writing, they, by an innocent mistake, omitted words which would have expressed the true agreement, and used words which express an agreement differing materially from the only one they made.

There is perhaps a distinction between the supposed case and the actual case, but it is quite shadowy. They differ not at all in their unjust consequences. In both, by an innocent mistake mutually entertained, the vendor obtains an unconscionable advantage over the vendee, a result which was not intended by either. There exists no good, substantial reason, as it seems to us, why relief should be given in the one case and refused in the other, other things being equal. It is hardly necessary to say that, in cases like the one at bar, courts of equity ought to move with great caution. Before an instrument is reformed, under such circumstances, the proof of the mistake, and that it really gives an unjust advantage to one party over the other, ought to be of the most convincing character. "Of course the presumption in favor of the written over the spoken agreement is almost resistless; and the court has wearied itself in declaring that such prayers (for relief of this kind) must be supported by overwhelming evidence, or be denied." Palmer v. Insurance Co., 54 Conn. 501, 9 Atl. 248.

We are not concerned here, however, with the amount or sufficiency of the proofs upon which the court below acted, nor with the sufficiency of the pleadings; we must, upon this record, assume that the pleadings are sufficient, and that the proofs came fully up to the highest standard requirements in such cases. Upon principle, then, we think a court of equity may correct a mistake of law in a case like the one at bar, and we also think the very great weight of modern authority is in favor of that conclusion. The case clearly falls within that class of cases where there is an antecedent ment, and, in reducing it to writing, the instrument executed, by agreereason of the common mistake of the parties as to the legal effect of the words used, fails, as to one or more material points, to express their actual agreement. It is perhaps not essential in all cases that there should be an antecedent agreement, as appears to be held in Benson v. Markoe, 37 Minn. 30, 33 N. W. 38, 5 Am. St. Rep. 816; but we have no occasion to consider that question in the case at bar. The authorities in favor of the conclusion that a court of equity in such cases will correct a mistake, even if it be one of law, are

very numerous, and the citation of a few of the more important must suffice.

In Hunt v. Rhodes, 1 Pet. 1, 13, 7 L. Ed. 27, decided in 1828, it is said: "Where an instrument is drawn and executed which professes, or is intended, to carry into execution an agreement, whether in writing or by parol, previously entered into, but which by mistake. of the draftsman, either as to fact or law, does not fulfill, or which violates, the manifest intention of the parties to the agreement, equity will correct the mistake so as to produce a conformity of the instrument to the agreement." It was said in the argument before us that this was a mere obiter dictum, but that is hardly correct. It is true the case was held not to fall within the principle, but the principle was said to be "incontrovertible," and was applied to the extent at least of determining that the case then before the court did not come within it. In Snell v. Insurance Co., 98 U. S. 85, 25 L. Ed. 52, the court applied the principle so clearly stated in the case last cited, and reformed a policy of insurance, though the mistake was clearly one as to the legal effect of the language of the policy. In numerous other decisions of that court the same principle has been cautiously but repeatedly applied, but it is not necessary to cite them. On the general question, whether a court of equity will relieve against a mistake as to the legal effect of the language of a writing, the case of Griswold v. Hazard, 141 U. S. 260, 11 Sup. Ct. 972, 999, 35 L. Ed. 678, is a strong case, though perhaps hardly an authority upon the precise question in this case. Canedy v. Marcy, 13 Gray (Mass.) 373, was a case where the oral contract was for the sale of two-thirds of certain premises, but the deed, by mistake of the scrivener, conveyed the entire premises. The words used were ones intended to be used in one sense, the error being that all concerned supposed those words would carry out the oral agreement. This was clearly a mistake "concerning the legal construction of the written contract," but the court, by Chief Justice Shaw, said: "We are of the opinion that courts of equity in such cases are not limited to affording relief only in cases of mistake of fact, and that a mistake in the legal effect of a description in a deed, or in the use of technical language, may be relieved against upon proper proof." In Goode v. Riley, 153 Mass. 585, 28 N. E. 228, decided in 1891, the court says: "The only question argued is raised by the defendant's exception to the refusal of a ruling that, if both parties intended that the description should be written as it was written, the plaintiff was not entitled to a reformation. It would be a sufficient answer that the contrary is settled in this commonwealth,"citing a number of cases.

In Kennard v. George, 44 N. H. 440, the parties, by mistake as to its legal effect, supposed a mortgage deed to be valid when it was not. The court relieved against the mistake, and said: "It seems

to us to be a clear case of mutual mistake, where the instrument given and received was not in fact what all the parties to it supposed it was and intended it should be; and in such a case equity will interfere and reform the deed, and make it what the parties at the time of its execution intended to make it; and in this respect it makes no difference whether the defect in the instrument be in a statutory or common-law requisite, or whether the parties failed to make the instrument in the form they intended, or misapprehended its legal effect."

In Eastman v. Association, 65 N. H. 176, 18 Atl. 745, 5 L. R. A. 712, 23 Am. St. Rep. 29, decided in 1889, the mistake was as to the legal effect of an insurance certificate, but the court granted relief by way of reformation. The court says: "Both parties intended to make the benefit payable to Gigar's administrator. That it was not made payable to him was due to their mutual misapprehension of the legal effect of the language used in the certificate. * Equity requires an amendment of the writing that will make the contract what the parties supposed it was, and intended it should be, although their mistake is one of law, and not of fact."

In Trusdell v. Lehman, 47 N. J. Eq. 218, 20 Atl. 391, the marginal note is as follows: "Where it clearly appears that a deed drawn professedly to carry out the agreement of the parties, previously entered into, is executed under the misapprehension that it really embodies the agreement, whereas, by mistake of the draughtsman either as to fact or law, it fails to fulfill that purpose, equity will correct the mistake by reforming the instrument in accordance with the contract."

In a general way, the same rule is recognized and applied with. more or less strictness in the following cases: Clayton v. Freet, 10 Ohio St. 544; Bush v. Hicks, 60 N. Y. 298; Andrews v. Andrews, 81 Me. 337, 17 Atl. 166; May v. Adams, 58 Vt. 74, 3 Atl. 187; Griffith v. Townley, 69 Mo. 13, 33 Am. Rep. 476; Benson v. Markoe, 37 Minn. 30, 33 N. W. 38, 5 Am. St. Rep. 816; Gump's Appeal, 65 Pa. 476; Cooper v. Phibbs, L. R. 2 H. L. 170. See, also, 2 Pom. Eq. Jur. § 845, and Bisp. Eq. §§ 184-191.

And, whatever the law may be elsewhere, this is certainly the law of our own state. Chamberlain v. Thompson, 10 Conn. 243, 26 Am. Dec. 390; Stedwell v. Anderson, 21 Conn. 144; Woodbury Savings Bank v. Charter Oak Ins. Co., 31 Conn. 518; Palmer v. Insurance. Co., 54 Conn. 488, 9 Atl. 248; and Haussman v. Burnham, 59 Conn. 117, 22 Atl. 1065, 21 Am. St. Rep. 74. Indeed, since the time of Northrop v. Graves, supra, it is difficult to see how our law could have been otherwise. We conclude then that by our own law, and by the decided weight of authority elsewhere, the defendant was entitled to the relief sought. If this is so, then clearly he was entitled to the parol evidence which the plaintiff objected to; for in no other

way, ordinarily, can the mistake be shown. "In such cases parol evidence is admissible to show that the party is entitled to the relief sought." Wheaton v. Wheaton, 9 Conn. 96. "It is settled, at least in equity, that this particular kind of evidence, that is to say, of mutual mistake as to the meaning of words used, is admissible for the negative purpose we have mentioned. 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." Goode v. Riley, 153 Mass. 585, 28 N. E. 228; Reyn. Theory Ev. § 69; 1 Greenl. Ev. (15th Ed.) § 269a; Steph. Dig. Ev. § 90.

The view we have taken of this case renders it unnecessary to notice at any length the cases cited by counsel for the plaintiff in his able argument before us. Upon his brief, he cites five from Illinois, two from Indiana, and one from Arkansas. After an examination of them, we can only say that most of them seem to support the claims of the plaintiff. If so, we think they are opposed to the very decided weight of authority, and do not state the law as it is held in this state. Before closing, however, we ought to notice the case of Wheaton v. Wheaton, supra, upon which the plaintiff's counsel seems to place. great reliance. The case is a somewhat peculiar one. Even in that case, however, the court seems to recognize the principle governing the class of cases within which we decide the case at bar falls, for it says: "It is not alleged that the writings were not so drawn as to effectuate the intention of the parties, through the mistake of the scrivener. On the contrary it is alleged that the scrivener was not even informed what the agreement between the parties was." From the statement of the case in the record and in the opinion, it clearly ap-、 pears that the mistake was not mutual; indeed, it does not even appear that at the time when the note was executed the other party even knew that there was any mistake at all on the part of anybody. Upon the facts stated, the plaintiff in this case did not bring it within the class of cases we have been considering. The case was correctly decided, not on the ground that the mistake was one of law, but on the ground that the mistake of law was one which, under the circumstances alleged, a court of equity would not correct. The court, however, in the opinion, seems to base its decision upon the distinction between mistakes of law and mistakes of fact; holding in general and unqualified terms, as was once quite customary, that the latter could be corrected and the former could not. The court probably did not mean to lay the law down in this broad and unqualified way; but if it did, it is sufficient to say that it is not a correct statement of our law, at least since the decision of Northrop v. Graves, supra. On the whole, this case of Wheaton v. Wheaton can hardly be regarded as supporting the plaintiff's contention.

There is no error apparent upon the record. In this opinion the other judges concurred.

I. Equitable Jurisdiction in Cases of Fraud1

MILLER et al. v. SCAMMON.

(Supreme Judicial Court of New Hampshire, 1873. 52 N. H. 609.)

In equity. The bill by Frank W. Miller and George W. Marston against Stephen Scammon alleged that the plaintiffs were the publishers of a daily newspaper, that the defendant, fraudulently intending to deceive and injure the plaintiffs, and to expose them to loss and to a prosecution for libel, persuaded and procured them to insert in their newspaper an advertisement over the signature of the defendant, and which he said was true, and which he alleged was necessary and designed to protect him against being compelled to pay certain notes therein described, which he then and there solemnly declared, had been wrongfully obtained, and purporting to have been for a valuable consideration, and to have been signed by the defendant, and which he then and there pretended and asserted he never signed, and upon which he might be sued, or which might be set up in a suit against him.

The bill then avers that the allegations of the advertisement were false, and the present plaintiffs, as well as the defendant, were indicted and convicted for publishing a false and malicious libel in said advertisement, and the present plaintiffs were fined $150, which they have paid, with costs taxed at $21.63, together with other costs for counsel fees and other expenses amounting to $50, amounting in the whole to $221.63.

The plaintiffs pray that the court will ascertain the amount which they have had to pay and the damages they have suffered by reason of the fraud and deceit of the defendant, and that he may be ordered and decreed to pay the same to the plaintiffs, with interest, and for such other relief as may be just.

To this bill there was a general demurrer, and the questions of law thus raised were reserved.

FOSTER, J. As a declaration in case, to recover damages for the deceit and fraud of the defendant, the plaintiffs' bill does not seem wanting in the essential and ordinary forms of pleading. The prayer of the bill is that the court may ascertain what the plaintiffs "have had

1 For discussion of principles, see Eaton on Equity (2d Ed.) § 121.

hav