as alleged by himself-and which must, therefore, so far as the case shows, have been incorrectly alleged-the court does not willingly permit him, against the defendant's objection, to avail himself of the different agreement-and so far as the case shows the correct one-which the defendant has averred in his answer and established by his evidence.(1) 4. It has been shown that where a plaintiff has knowingly made a misrepresentation affecting some part of the agreement, he cannot waive such portion and enforce the residue. But a wrong statement made by him in good faith, and not interfering with the substantial terms of the contract, will not prevent him, if the case is otherwise a proper one for granting the relief, from availing himself of the agreement as alleged and proved by the defendant, and obtaining a decree for its enforcement.(2)

SEC. 257. In respect to the mode of pleading the cause of action, when there has been a parol variation, the plaintiff should, for his own advantage and, perhaps, security, aver the facts as they actually exist, alleging the written agreement, and adding any parol promise, stipulation, terms, or representation, by which it has been varied or modified, and then leave it to the defendant to elect whether he will accept the agreement, as embodied in the writing, or insist upon the parol modification.(3) But if he does not adopt this method of stating the case, he will not, as we have seen, necessarily fail of obtaining any relief. Although he alleges the written contract alone, and the defendant establishes another version differing considerably from that set out in the plaintiff's pleading, the court may decree in the plaintiff's favor by enforcing the agreement proved by the defendant; this form of relief is, however, a matter of pure discretion, and not of right. (4) Finally, the court may, in its discretion, decree in the

(1) Lindsay v. Lynch, 2 Sch & Lef. 1; Clowes v. Higginson, 1 V. & B. 524; Pilling v. Armitage, 12 Ves. 78.

(2) Ramsbottom v. Gosdon, 1 V. & B. 165; London, etc., R'y Co. v. Winter, 1 Cr. & Ph. 57; Martin v. Pycroft, 2 DeG. M. & G. 788.

(3) Martin v. Pycroft, 2 DeG. M. & G. 788; Ives v. Hazard, 4 R. I. 14.

(4) Ramsbottom v. Gosdon, 1 V. & B. 165; London, etc., R'y Co. v. Winter, 1 Cr. & Ph. 57; Lord Wm. Gordon v. Marquis of Hertford, 2 Madd. 122; Garrard v. Grinling, 2 Sw. 244; Flood v. Finlay, 2 Ball & B. 9; Clark v. Grant, 14 Ves. 519; Bradford v. Union Bank, 13 How. (U. S.) 57; Wallace v. Brown, 2 Stockt. Ch. 308; Ryno v. Darby, 5 C. E. Green, 231; McComas v. Easley, 21 Gratt. 31. In the last two cases the plaintiff was permitted to have a decree for the performance of a contract, as alleged and proved by the defendant, without being required to amend his pleading; but this relief was expressly said to be a matter of discretion depending upon the circumstances of the case. Doe v. Doe, 37 N. H. 268; Buck v. Dowley, 16 Gray, 555.

defendant's favor a specific performance of the contract, as alleged in his answer and proved by his evidence, without putting him to the delay and trouble of a cross-suit.(1)

SEC. 258. The foregoing doctrines, so far as they relate to the granting of the affirmative relief of reformation and specific enforcement of the contract, as reformed, to the defendant, have been greatly modified by the rules of the reformed procedure, and this modification must be recognized in the states where that system prevails. The reformed procedure, as one of its distinctive features, permits a "counter-claim" to be set up by the defendant, by means of which he becomes a virtual plaintiff, and is entitled, as a matter of right, to affirmative relief. The counter-claim is a cause of action in favor of the defendant connected with that alleged by the plaintiff, and may be either legal or equitable. The claim to reform or modify the agreement set up by the plaintiff, and to enforce it, as thus varied, falls within every definition of the counter-claim. In most of the states where the system has been adopted, the counter-claim is set up in the defendant's answer, either alone or in connection with any matter purely defensive; but, in a few of them, the answer must be put into the form of a cross-complaint or petition. The result of this legislation cannot be doubted. If the defendant in a suit for specific performance, alleges by way of counter-claim, a parol variation or modification of the contract as set out by the plaintiff, and demands a reformation and specific enforcement as reformed, and sufficiently establishes his averments by his evidence, the granting to him the affirmative relief is no longer a matter of discretion; it has become a matter of right inhering in the defendant. The doctrines of the cases which have been decided upon the equity practice must, therefore, be modified in this respect wherever the reformed procedure prevails. The freedom of amendment allowed by the new system will, also, probably work some changes in the matter of granting an election to the plaintiff under the circumstances heretofore described.

SEC. 259. Third. Where mistake is alleged by the plaintiff as a ground for reforming his agreement, and enforcing its specific performance when thus corrected. Although, as has been shown in the foregoing subdivisions, parol evidence may be introduced by the defendant, in order to defeat a specific performance of a written contract, by showing that, through mistake or fraud, it does not express the real agreement made by the

(1) Spurrier v. Fitzgerald, 6 Ves. 548; Fife v. Clayton, 13 Ves. 546; Gwynn v. Lethbridge, 14 Ves. 535; Bradford v. Union Bank, supra.

parties, or by showing that the agreement was induced by fraud, mistake, or misrepresentation, yet, on the other hand, the doctrine is fully settled in England that this cannot be done by the plaintiff. The plaintiff cannot, in this manner, prove a mistake or a fraud, and by means of parol evidence establish the modification in the terms of the contract, which would result from such error or fraud, for the purpose of obtaining, in the same suit, a specific performance of the written agreement so varied,(1) unless there has been a part performance of the parol variation, in which case the written contract, with the modification, will be specifically executed. (2)

SEC. 260. This doctrine is fairly open to the following observations: First. When the alleged mistake, and a fortiori, when the fraud is committed by the plaintiff, it would be manifestly unjust that he, the actor in the suit brought to enforce the wrongful or imperfect agreement, should be allowed to correct his own error, or obviate the effects of his own deceit, and obtain a specific performance of the contract which had been thus amended. In its application to this case, the doctrine rests upon the surest foundations of equity, and prevails in the United States as well as in England. But, secondly. When the error is common, or the fraud is committed by the adverse party, so that the contract is one which may be reformed, there is certainly no greater inherent injustice in permitting such correction to be made on the demand of the plaintiff, and by means of parol evidence introduced on his part, than in allowing it to be made on the allegations, parol proofs, and contention of the defendant. And when we con

(1) Woollam v. Hearn, 7 Ves. 211; 2 White & Tudor's Lead. Cas. in Eq. 484 (920, 4th Am. ed.); Rich v. Jackson. 4 Bro. C. C. 514; 6 Ves. 334, n.; Higginson v. Clowes, 15 Ves. 516, 523; Winch v. Winchester, 1 V. & B. 375, 378; Clinan v. Cooke, 1 Sch. & Lef. 22, 38; Manser v. Back, 6 Hare, 447; £quire v. Campbell, 1 My. & Cr. 480; London & Birmingham Ry. Co. v. Winter, Cr. & Ph. 57, 61; Emmett v. Dewhurst, 3 McN. & G. 587; Atty.-Gen. v. Sitwell, 1 Y. & C. Ex. 559; Davies v. Fitton, 2 Dr. & W. 225, 233. There are early dicta suggesting a contrary view of Lord HARDWICKE in Walker v. Walker, 2 Atk. 98, 100; 6 Ves. 335, n.; and Joynes v. Statham, 3 Atk. 388; of Lord THURLOW, in Pember v. Mathers, 1 Bro. C. C. 52; and of Lord ELDON, in Marquis Townshend v. Stangroom, 6 Ves. 328, 339; and see, also, Harrison v. Gardner, 2 Mad. 198; Clark v. Grant, 14 Ves. 524, per Sir Wm. GRANT; Clifford v. Turrell, 1 Y. & C. C. C. 138, per KNIGHT BRUCE, V. C. In Martin v. Pycroft, 2 DeG. M. & G. 785, a limitation seems to have been established to the general doctrine as stated in the text, viz.: that plaintiff may prove a parol modification, which, if it had been alleged by the defendant, and submitted to by the plaintiff, would have been made a part of the written agreement, and enforced with it by the court; and see Robinson v. Page, 3 Russ. 114.

(2) Legal v. Miller, 2 Ves. 299; Pitcairn v. Ogbourne, 2 Ves. 375; Anon., 5 Vin. Abr. 522, pl. 38.

sider that the plaintiff is always able, in the cases supposed, to obtain a reformation of the written contract by the use of the same parol evidence in a separate suit instituted for that very purpose, and can, in a second suit, compel a specific performance of the agreement thus corrected, the rule forbidding the attainment of this final result in one proceeding, seems to be an instance of the supreme devotion to mere form which was such a marked characteristic of even the ablest English courts during their entire history until within a very recent period. Whenever the remedy of reformation is simply a preliminary step to that of specific performance, there is no reason, in the nature of things, why they should not both be granted in one judicial proceeding.

SEC. 261. The American courts have pursued, in this respect, the more simple, consistent, and enlightened course of adjudication. The doctrine is well settled in the United States, that where the mistake or fraud in a written contract is such as admits the equitable remedy of reformation, parol evidence may be resorted to by the plaintiff seeking to enforce, as well as by the defendant seeking to defeat a specific performance. The plaintiff may allege and by parol evidence prove the mistake or fraud, and the modification in the written contract made necessary thereby, and may obtain a decree for the specific execution of the agreement thus corrected.(1) The defect in the

(1) Chancellor KENT, in Keisselbrack v. Livingstone, 4 Johns. Ch. 148, expressed the following opinion of the doctrine: " Why should not the party aggrieved by a mistake in the agreement have relief as well when he is plaintiff as when he is defendant? It cannot make any difference in the reasonableness and justice of the remedy, whether the mistake were to the prejudice of the one party or the other. If the court be a competent jurisdiction to correct such mistakes-and that is a point understood and settled--the agreement when corrected and made to speak the real sense of the parties ought to be enforced, as well as any other agreement perfect in the first instance. It ought to have the same efficacy and be entitled to the same protection, when made accurate under a decree of the court, as when made accurate by the act of the parties.” See Story Eq. Jur. § 166, n. See, also, in support of the American doctrine, the following cases: Bellows v. Stone, 14 N. H. 175; Smith v Greeley, 14 N. H. 378; Craig v. Kittredge, 3 Foster, 231; Tilton v. Tilton, 9 N. H. 385; Beardsley v. Knight, 10 Vt. 185; Glass v. Hulbert, 102 Mass. 24, 41; Metcalf v. Putnam, 9 Allen, 97; Coob v. Preston, 2 Root, 78; Sandford v. Washburn, 2 Root, 499; Elmore v. Austin, 2 Root, 415; Chamberlain v. Thompson, 10 Conn. 243; Wooden v. Haviland, 18 Conn. 101; Lyman v. Unit Ins. Co., 17 Johns. 377; Gooding v. McAllister, 9 How. Pr. 123; Hyde v. Tanner, 1 Barb. 75; Governeur v. Titus, 1 Edw. Ch. 477; 6 Paige, 347; Gillespie v. Moon, 2 Johns. Ch. 585; Coles v. Brown, 10 Paige, 535; Rosevelt v. Fulton, 2 Cow. 129; Smith v. Allen, Saxton, 43; Hendrickson v. Ivins, Saxton, 562; Christ v. Diffenbach, 1 Serg. & R. 464; Moliere v. Penn. Ins. Co., 5 Rawle, 347; Gower v. Sterner, 2 Whart. 75; Bowman v. Bittenbender, 4 Watts, 290; Clark v. Partridge. 2 Barr. 13, 4 Barr. 166; Susquehanna Ins. Co. v. Perrine, 7 W. & S. 348 ; Wesley v. Thomas, 6 Har. & Johns. 24; Coutt v. Craig, 2

contract must, however, be proved beyond any reasonable doubt, by evidence of the clearest and most satisfactory nature. (1) The burden of proof is on the plaintiff; and this burden requires him to show, not only that the parties had a different intention from that expressed in the writing, at the commencement of their negotiation or when they first agreed upon the contract, but also that this intention had not been changed at the time of, or before, the actual signing and delivery of the written instrument; otherwise the inference would necessarily arise that the parties had abandoned this their original intention, and had adopted in place of it the one expressed by the writing. (2) It is not sufficient merely to prove a mistake, which might be the ground for a rescission. In order that the plaintiff may have the remedy of reformation, he must show something to amend by; an alteration of the writing cannot be made upon a conjecture as to the true reading, even though the court is satisfied that the existing instrument does not express the real intention of the parties.(3)

Hen. & Munf. 618; McCall v. Harrison, 1 Brockenborough, 126; Newsom v. Bufferlow, 1 Dev. Eq. 383; Brady v. Parker, 4 Ired. Eq. 430; Rogers v. Atkinson, 1 Kelly, 12; Clopton v. Martin, 11 Ala. 187: Harris v. Columbiana Ins. Co., 18 Ohio, 116; Webster v. Harris, 16 Ohio, 490; Shelby v. Smith, 2 A. K. Marsh. 504; Worley v. Tuggle, 4 Bush, 168, 173; Shipp v. Swann, 2 Bibb, 82; Bailey v. Bailey, 8 Humph. 230; Willis v. Henderson, 4 Scam. 13; Leitensdorfer v. Delphy, 15 Mo. 160. In Murphy v. Rooney, 45 Cal. 78, the defendant in an action to recover possession of land set up, by way of counter-claim, a written contract for the sale of the land, and sought to have a mistake in it corrected by parol evidence, and then to have it specifically performed as corrected, and this relief was granted him. Such a defendant is, of course, in the position of a plaintiff. Murray v. Dake, 46 Cal. 644. In Whitteker v. Van Schoiack, 5 Oreg. 113, it was said that a court of equity will not generally compel the specific performance of a written contract with variations or additions introduced by parol evidence, for such a course would be an attempt to enforce a contract partly written and partly verbal, while the court of equity regards the writing as the highest evidence of the parties' intent without reference to the requirements of the statute of frauds. See, however, Quinn v. Roath, 37 Conn. 16.

(1) Nevius v. Dunlap, 33 N. Y. 676; Lyman v. U. Ins. Co., 2 Johns. Ch. 630; 17 Johns. 373; Harris v. Reece, 5 Gil. 212; Beard v. Linthicum, 1 Md. Ch. 345; Hunter v. Bilyeu, 30 Ill. 246; Selby v. Geines, 12 Ill. 69; Bailey v. Bailey, 8 Humph. 230; Harrison v. Howard, 1 Ired. Eq. 407; Brady v. Parker, 4 Ired. Eq. 430.

(2) Stine v. Sherk, 1 W. & S. 195.

(3) Lyman v. U. Ins. Co., 2 Johns. Ch. 630; Keisselbrack v. Livingston, 4 Johns. Ch. 144; Matthews v. Terwilliger, 3 Barb. 50; Rider v. Powel, 28 N. Y. 310; Hall v. Clagett, 2 Md. Ch. 153; Philpot v. Elliott, 4 Md. Ch. 273; Hunt v. Rousmanier, 1 Pet. 1; Durant v. Bacot, 2 McCarter, 411; Snyder v. May, 7 Harris, 239; Tesson v. Atlantic Ins. Co., 40 Mo. 33; Beebe v. Young, 14 Mich. 136;