ket, and that both parties were ignorant of the existence of a municipal ordinance prohibiting meat markets in that vicinity, and that the lessor refuses to permit the plaintiff to sublet.241 In another case, the plaintiff conveyed land to a county for the purpose of erecting a courthouse in the place to which, as both parties supposed, the county seat had been legally removed. The consideration of the transfer was one dollar, the real motive of the plaintiff in making it being the anticipated enhancement in value of his other property in the same place. But afterwards the courts held that the proceedings for the removal of the county seat to that place were void. Thereupon a bill was filed to cancel the deed, and it was held that, the deed being founded on an assumption which was a mutual mistake, it could be relieved against in equity, as the parties could be placed in their original position by requiring the grantor to refund to the county what it had expended for improvements, and to pay the taxes for the years during which the land had been held exempt as county property.242 But where the parties to deed are uncertain as to what estate the vendor has taken under the statutes of descent and distribution, and the land is conveyed under an agreement that, when the law is settled, the vendor shall be paid such proportion of the price as his interest bears to the entire title, this is not a case of mutual mistake of law.243 And it should be observed that mutuality in a mistake of law does not aid the equities that arise from it, for the court of equity will not interfere unless there is something that makes it inequitable to enforce the obligation over which the mistake has occurred.244 § 153. Same; Laws of Foreign State or Country.—It is a familiar principle that the existence and terms of the laws of a foreign country, or of another state of the Union, are not treated in our courts as matters of law, but as matters of fact. Courts, for instance, do not take judicial notice of foreign laws, but require them to be proved as facts. This rule 241 Altgelt v. Gerbic (Tex. Civ. App.) 149 S. W. 233. applies to individuals in their dealings with each other. No one is bound to know the terms of a law of a foreign state or country, and hence a mistake in respect to such matters may justify the rescission of a contract or conveyance in the same circumstances and under the same conditions as any other mistake of fact.245 Thus, for example, a mistake made by the wife and the mother of a decedent as to the law of descent of a state other than that of their residence, which led to a transfer of land of the decedent to the mother, when, under the statute, the wife was entitled to all of it, is a mistake of fact against which equity will grant relief. 246 § 154. Loss or Injury Resulting From Mistake. It has sometimes been laid down as a general rule that a court of equity should not rescind a contract on the ground of mistake unless the complaining party shows that the mistake has resulted, or will result, in some substantial loss or injury to himself.247 And this showing is not made, it is thought, where the other party to the contract is able and willing to correct the mistake,248 or where the party seeking to be relieved entered into the contract as a speculating bargain, and hence may be presumed to have contemplated the possibility of loss or damage.249 These principles were applied in a case where the bill was brought to set aside a trust deed on the ground that it did not conform to the directions of the grantor, and that it was executed by mistake. It appeared that, while some of the provisions may have been displeasing to the grantor, yet the deed did accomplish his purpose in a general way, and there was no evidence that his instructions, which were not specifically 245 King v. Doolittle, 1 Head (Tenn.) 77; Rosenbaum v. United States Credit-System Co., 64 N. J. Law, 34, 44 Atl. 966; Osincup v. Henthorn, 89 Kan. 58, 130 Pac. 652, 46 L. R. A. (N. S.) 174, Ann. Cas. 1914C, 1262; Civ. Code Cal., § 1579; Rev. Civ. Code Mont., § 4985; Rev. Civ. Code N. Dak., § 5300; Rev. Civ. Code S. Dak., § 1208; Rev. Laws Okl. 1910, § 910. 246 Osincup v. Henthorn, 89 Kan. 58, 130 Pac. 652, 46 L. R. A. (N. S.) 174, Ann. Cas. 1914C, 1262. 247 Morse v. Beale, 68 Iowa, 463, 27 N. W. 461; Powe v. Culver, 81 Conn. 49, 69 Atl. 1050. 248 Evans v. Bolling, 5 Ala. 550. 249 Lawrence v. Beaubien, 2 Bailey (S. C.) 623, 23 Am. Dec. 155. proved, had been misunderstood or disobeyed. It was held that the bill should be dismissed.250 But it is believed that the better rule for this class of cases would be that which is applied to rescission on the ground of fraudulent representations, namely, that if the complaining party has received the very thing he bargained for, but complains of misrepresentations as to its quality, character, extent, etc., he must show loss or injury, but that, if something else is fraudulently substituted for that which he expected to acquire, he may have rescission without showing its inferiority or his resulting damage.251 On this rule, where a bill is brought to cancel a deed of land on the ground of mistake as to the subject-matter, it is no defense that the tract actually conveyed is worth as much as the one which the plaintiff contracted to buy.252 So, in another case, complainant bought the charter of a bank, having seen only an attested copy of it, from which was omitted a clause reserving to the legislature the power of repealing it. Subsequently the legislature did repeal the charter, and complainant filed his bill for a rescission of the sale. It was held that, the existence of the repealing power being a defect which made the contract different from that which either of the parties understood or intended, it was not material that it had not been used at the date of the contract, or that, so far as then appeared, it might never be used.253 § 155. Evidence to Prove Mistake.—A contract will not be rescinded or modified in equity on the ground of mistake in its terms or provisions or as to the subject-matter, unless such mistake is established by clear, satisfactory, and convincing proof. It is not enough to show a possibility or even a probability of mistake, but its actual existence must be demonstrated. If the matter is left in doubt, or nothing more than a probability or ground of presumption is established, the contract will be left to stand as it is.254 It is 250 Byrne v. Gunning, 75 Md. 30, 23 Atl. 1. 251 Supra, § 112. 252 Clapp v. Greenlee, 100 Iowa, 586, 69 N. W. 1049. 253 King v. Doolittle, 1 Head (Tenn.) 77. 254 Ohlander v. Dexter, 97 Ala. 476, 12 South. 51; Oiler v. Gard, 23 Ind. 212; Loviolette v. Butler, 124 Mich. 580, 83 N. W. 598; true, however, that it is no obstacle that the mistake must be made out by parol evidence, while the contract has been reduced to writing. But relief will be granted in the case of written instruments only when there is a plain mistake clearly made out by satisfactory proofs.255 Thus, the fact that a husband paid most of the purchase money is not conclusive evidence that the wife's name was inserted in the deed as the grantee by mistake.256 In another case, an action was brought to cancel a policy of insurance on the ground that it was by mistake written for five years instead of three years, and there was evidence tending to show such mistake, but both the agent who effected the insurance and the person insured testified that a premium had been paid for a five-year policy, and that the mistake had been made, not in the policy, but in the application for insurance, by inserting "three" instead of "five" years. It was held that the proof did not unquestionably establish a mistake in the policy, and therefore the plaintiff was not entitled to relief.257 But in a case in West Virginia, it has been said that equity will grant relief on the ground of mistake, not only when the mistake is expressly proved, but when it is implied from the nature of the transaction.258 § 156. Accident or Surprise as Ground for Relief.-The phrase "accident or surprise," as used in equity jurisprudence, embraces not only various forfeitures due to accidents in the popular sense, but such unforeseen events, misfortunes, losses, acts, or omissions as are not the result of negligence or misconduct. "Accident" is an unforeseen and unexpected event, occurring external to the party affected. by it and of which his own agency is not the proximate cause, whereby, contrary to his wish, he loses some legal right or becomes subjected to some legal liability, and an Thompson v. E. I. Dupont Co., 100 Minn. 367, 111 N. W. 302; Robinson v. Bobb, 139 Mo. 346, 40 S. W. 938; Masterton v. Beers, 31 N. Y. Super. Ct. 406; Solenberger v. Strickler's Adm'r, 110 Va. 273, 65 S. E. 566. 255 Major v. Ficklin, 85 Va. 732, 8 S. E. 715. 256 Bader v. Dyer, 106 Iowa, 715, 77 N. W. 469, 68 Am. St. Rep. 332. 257 Edmond's Appeal, 59 Pa. 220. 258 Taylor v. Godfrey, 62 W. Va. 677, 59 S. E. 631. BLACK RESC.-27 other person acquires a corresponding legal right, which it would violate good conscience for the latter under the circumstances to retain. The word "surprise" is used interchangeably with "accident" to designate the emergencies giving rise to accidents, both words signifying a detrimental situation wherein a party is placed unexpectedly, and against which ordinary prudence would not have guarded.259 And where an "accident" occurs which was not anticipated and provided for when the contract was made, and which leaves one of the parties without remedy in a court of law, the jurisdiction of a court of equity may then be invoked to give relief against the accident.260 But it is said that the "surprise" which will induce equity to interfere and cancel a contract must consist of an overpowering of the will, a taking away of volition,-so that the act was not that of the party, but of others,261 and that one is not entitled to relief against an instrument on the ground of surprise, when he had the advice of counsel in doing the act complained of.262 But when some mental weakness or incapacity for business affairs on the part of the complaining party is shown, and there is ground to believe that he did not understand what he was doing, it seems that equity may interfere on the ground of surprise, even though there is nothing to show any fraud or duress.263 And see 259 State v. Innes, 137 Mo. App. 420, 118 S. W. 1168. Engler v. Knoblaugh, 131 Mo. App. 481, 110 S. W. 16; West Portland Homestead Ass'n v. Lownsdale (D. C.) 17 Fed. 614; Kopper v. Dyer, 59 Vt. 477, 9 Atl. 4, 59 Am. Rep. 742; Zimmerer v. Fremont Nat. Bank, 59 Neb. 661, 81 N. W. 849. 260 City of Bloomington v. Smith, 123 Ind. 41, 23 N. E. 972, 18 Am. St. Rep. 310; Voliva v. Cook, 262 Ill. 502, 104 N. E. 711. 261 McRae v. Malloy, 93 N. C. 154. 262 Sandlin v. Ward, 94 N. C. 490. 263 Hoagland v. Titus, 16 N. J. Eq. 44. |