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§ 755. Accordingly, in a case already stated, where the question was whether a certain seven acres were or were not included in the contract, Lord Thurlow, after stating that if the parties to the contract had mistaken each other in this respect, it must be rescinded, said: "Upon the other hand, if both understood the whole was to be conveyed, it must be conveyed. But again, if neither understood so-if the buyer did not imagine he was buying, any more than the seller imagined he was selling, this part, then this pretence to have the whole conveyed is as contrary to good faith upon his side, as the refusal to sell would be in the other case." (e)

§ 756. The jurisdiction of the court in this respect was clearly asserted by Lord Hardwicke in the case of Henkle v. Royal Exchange Assurance Co., (f) which was a bill seeking, after the loss, so to rectify a policy, on the ground of common mistake, as to turn the loss on the insurer, which but for such variation must have been borne by the insured. "No doubt," said his lordship, "but this court has jurisdiction to relieve in respect of a plain mistake in contracts in writing, as well as against frauds in contracts: so that if reduced into writing contrary to intent of the parties, on proper proof that would be rectified:" but for want of such proper proof the bill was dismissed.

§ 757. In another case, before the same judge, the captain of an East India ship, by articles of agreement, bargained and sold all his china-ware and merchandize brought home in his last voyage to the defendant: the articles of agreement were drawn up, from minutes made by the parties, by an attorney, who, misunderstanding the transaction, drew up the articles in an erroneous and absurd manner: the captain, who was the party aggrieved by the error, brought his bill for an account of what was due on the contract, and insisted on its rectification: he was allowed to give parol evidence of the error and of the usage of trade, to show the nature of the real transaction and the consequent mistake in the articles.(g)

§ 758. It follows, from the nature of the jurisdiction, that there can be no rectification where there is not a prior actual contract by which to rectify the written document: so that,

(e) Calverley v. Williams, 1 Ves. Jun., 210. () 1 Ves. Sen., 317.

(g) Baker v. Paine, 1 Ves. Sen., 456; 6 Ves., 336 n.

for instance, a policy cannot be rectified (h) by the slip, because the slip constituted no contract, and there was no contract till the policy was signed and the premium paid.(i)

§ 759. It equally follows, that the mistake of one party to a contract can never be a ground for compulsory rectification. It may be a reason for setting the whole thing aside, but never for imposing on one party the erroneous conception of the other.(j)

§ 760. However, in two cases decided by Lord Romilly, M. R., in each of which the mistake was, according to the defendant, on the side of the plaintiff only, and the deed of conveyance had been executed, his lordship held that, though the plaintiff was not entitled to compel rectification, the defendant must elect between having the transaction annulled altogether and submitting to the rectification of the deed in accordance with the plaintiff's intention. (k)

§ 761. Parol evidence is admitted to show the common mistake of both parties in reducing the contract into writing, and as the ground for rectifying it.' "I think it im

(h) See Morocco Land, etc., Trading Co. (Limited) v. Fry, 13 W. R., 310.

(i) Mackenzie v. Coulson, L. R 8 Eq., 368 (j) Sells v. Sells, 1 Dr. & Sm., 42; Rooke v. Lord Kensington, 2 K. & J., 753; Thompson v. Whitmore, 1 J. & H., 268; Earl of Bradford v. Earl of Romney, 30 Beav, 431.

(k) Garrard v. Frankel. 30 Beav., 445; Harris v. Pepperell, L. R. 5 Eq., 1. In his judg, ment in the latter case Lord Romilly, M. R.points out the distinction between the decis ions in Garrard v. Frankel and Earl of Bradford v. Earl of Romney (30 Beav., 431).

1 Reason for reforming written instrument by parol] "The principle on which courts of equity rectify an instrument so as to enlarge its operation, or to convey or enforce rights not found in the writing itself, and make it conform to the agreement as proved by parol evidence, on the ground of an omission by mutual mistake in the reduction of the agreement to writing, is, as we understand it, that in equity the previous agreement is held to subsist as a binding contract, notwithstanding the attempt to put it in writing." Wells, J., in Glass v. Hulbert, 102 Mass., 24.

Parol proof to reform writing must be very strong.] Where it is sought to reform a written instrument on the ground of mistake, by parol, the evidence must be very clear and positive. It must, as some of the cases say, "leave no doubt of the mistake." Lord Eldon said, in Marquis of Townshend v. Standgroom, 6 Ves., 333, that the evidence must be the strongest possible.' Kent, Ch., in Gillespie v. Moon, 2 John.'s Ch., 585, said, after a careful review of all the then law on this subject: "The cases concur in the strictness and difficulty of the proof." Lord Thurlow said, in Shelburne v. Inchiquin, 1 Bro. C. C., 338, "that the evidence must be strong and irrefragable." See under this head, Hinkle v. Royal Ex. Ass. Co., 1 Ves., 317; Vonillon v. States, 25 L. J. Ch., 875; Anderson v. Bacon, 1 J. J. Marsh., 48; Planque v. Guesnon, 15 La. An., 312; Guernsey v. Am. Ins. Co., 17 Minn., 104; Brady v. Parker, 4 Ired.'s Eq, 430; McDonald v. Starkey, 42 Ill., 442; Sawer v. Hovey, 3 Allen, 331; Goodell v. Field, 15 Vt., 448; Harrison v. Howard, 1 Ired.'s Eq., 407; Huston v. Noble, 4 J. J. Marsh., 130; Watkins v. Stocket, 6 Har. & John., 435; Landerdale v. Hallock, 7 Sm. & Marsh, 622; Ross v. Wilson, id., 753; Wurzburger

possible," said Lord Thurlow, "to refuse, as incompetent, parol evidence which goes to prove that the words taken down in writing were contrary to the concurrent intention of all parties (7)

§ 762. But in order thus to procure the rectification of a contract, the proof must be clear, irrefragable, and the "strongest possible."(m) As the point to be proved is that the concurrent intention of all the parties to the contract was different from that expressed by the written contract, the court will attentively regard the admission or denial of the defendant as one of those parties. (n) It need scarcely be added that the court will only act on parol evidence when satisfied that there is no existing writing which contains the original instructions or contract. (o)

§ 763. Where there is a writing by which an executed deed is to be rectified, and in that writing, there is a term in respect of which there is a latent ambiguity, parol evidence may be admitted to explain it, and thus assist in the rectification of the deed. (p)

§ 764. Mistakes are usually divided into mistakes of fact(g) and of law. The former kind have always been held to give occasion to the jurisdiction of equity in mistake.

§ 765. As regard mistakes of law, the maxim usually referred to was Ignorantia legis non excusat; and the older authorities seem to show that courts of equity would neither set aside contracts for mistake in law, (r) nor allow such mistake to be set up as ground for resisting specific per

(1) In Lady Shelbourne v. Lord Inchiquin, 1 Bro. C. C., 341.

(m) Henkle v. Royal Exchange Assurance Co., 1 Ves. Sen., 317; per Lord Eldon in Marquis Townshend v. Stangroom, 6 Ves, 333; Vouillon v. States, 25 L. J. Ch., 875; 27 L. T., 268; Fallon v. Robins, 16 Ir. Ch. R., 422.

(n) 6 Ves, 334; Mortimer v. Shorhall, 2 Dr. & War., 363, 374. In Pitcairn v. Ogbourne, 2 Ves. Sen., 375, 379, the evidence was considered sufficient to overcome the defendant's denial. See, too, Garrard v. Frankel, 30

Beav., 445; Harris v. Pepperell, L. R. 5 Eq., 1. (0) Lackersteen v. Lackersteen, 30 L. J. Ch, 5; 6 Jur. (N. 8.), 1111.

(p) Murray v. Parker, 19 Beav., 305

(q) It may be observed that mistake of fact is not the less a ground for relief because the person who has made the mistake had the means of knowledge. Willmott v. Barker, 15 Ch. D., 97, 106.

232,

(r) Marshall v. Collett, 1 Y. & C. Ex., 238; Cockerell v. Cholmley, 1 R. & My., 418.

v. Meric, 20 La. An., 415; Bradford v. Union Bank of Tenn., 13 How., 57; Hunter v. Bilyon, 30 Ill., 228; Selby v. Geine, 12 id., 69; Stine v. Sherk, 1 Watts & Serg., 195; Kurkenbeister v. Becket 41 Ill., 172; Clarey v. Babcock, 41 id., 271; Mills v. Lockwood, 42 id., 111; McCloskey v. McCormick, 44 id., 336; Terson v. Atlantic Mutual Ins. Co., 40 Mo., 33; Shrively v. Welch, 2 Oregon, 288; Lyman v. United Ins. Co., 17 John., 373; McMahon v. Spangler, 4 Rand, 51.

formance of contracts in other respects free from objection. (s)1

§ 766. This view of the law was thus stated by Lord Chelmsford in addressing the House of Lords in 1858. (t) "Mistake is undoubtedly one of the grounds for equitable interference and relief; but then it must be mistake not in matters of law, but a mistake of facts. The construction of a contract is clearly matter of law; and if a party acts upon a mistaken view of his rights under a contract, he is no more entitled to relief in equity than he would be at law.(u)

§ 767. With the authorities referred to in the two last preceding sections may be compared those others, which show that a misrepresentation of law, at least if innocently made, does not bind and create any civil liability. (v)2

(8) Pullen v. Ready, 2 Atk., 587; per Lord Alvanley, M. R., in Gibbons v. Count, 4 Ves., 849; Stockley v. Stockley, 1 V. & B., 23, 30; Mildmay v. Hungerford, 2 Vern., 243. See, also, Bilbie v. Lumley, 2 East. 469; Croome v. Ledlard, 2 My. & K., 251; Price v. Dyer, 17 Ves., 356.

(t) Midland Great Western Railway of Ireland v. Johnson, 6 H. L. C., 810, 811. (u) See Powell v. Smith, L. R. 14 Eq., 85. (v) Rashdall v. Ford, L. R. 2 Eq., 750; Beattie v. Lord Ebury, L. R. 7 Ch, 777.

1 Mistake as to the operation of law.] Where a contract has been fairly entered into with full knowledge of all the facts, a mistake of the law will not in general be ground for resisting the specific performance of such contract. Marshall v. Collett, 1 Y. & C. Ex., 232, 238; Mildmay v. Hungerford, 2 Vern., 243; Leed v. Johnson, 25 L J. Exch., 110; Cockerell v. Cholmeley, 1 R. & My., 418; Pullen v. Ready, 2 Atk., 587; Stockley v. Stockley, 1 V. & B., 23, 30; Gibbons v. Ganut, 4 Ves., 489: Mellus v. Duke of Dovenshire, 16 Beav., 257; Midland Gt. West Co. v. Johnson, 6 H. of Lds., 798; Wooden v. Haveland, 18 Conn., 101; Bank of U. S. v. Daniel, 12 Pet., 32; Lyon v. Richmond, 2 John.'s Ch., 60; Trigg v. Read, 5 Humph., 529; Genter v. Thoms, 1 Ired 's Eq., 195; Shafer v. Davis, 13 Ill., 395; Peters v. Florence, 38 Pa. St., 194; McMurry v. St. Louis Co., 33 Mo., 377; Heilbron v. Bissell, 1 Bailey's Ch., 430; Storrs v. Barker, 6 John.'s Ch., 166; Dow v. Rer, Spear's Ch., 413; Wentermute v. Snyder, 2 Green's Ch., 489; Bell v. Steele, 2 Humph., 148; Shotwell v. Murray, 1 John.'s Ch., 512; Brown v. Armistead, 6 Rand., 594; State v. Reigert, 1 Gill., 1; Dill v. Shahan, 35 Ala., 694; Gwynn v. Hamilton, 29 id., 233; Smith v. McDougall, 2 Cal., 586.

1 A distinction has been taken between ignorance of the law and mistake of the law, which has caused no little diversity of opinion, and created considerable perplexity. In the first case, it has been said, relief will be granted; in the latter it will not. We take it to be the settled rule, at present, that no such distinction exists; and that ignorance of the law and mistake of the law are equally considered in courts of equity to form no groundwork for relief. A leading case in this country, upon this question, is Champlin v. Laytin, 18 Wend., 409, where the authorities upon the point in view were considered by Bronson, J. Landsdown v. Landsdown, Mosely, 364, is the oldest case which has sought to establish this distinction. The case was this: The second of four brothers died, and the eldest and youngest both claimed the estate. They referred the question to a school master, who decided that the youngest was entitled to the property, because lands could not ascend. Upon this, the parties agreed to divide the estate between them, and the eldest brother executed a release. The chancellor decreed that the deed should be delivered up, "be

§ 768. Recent decisions, however, have lessened, if not destroyed the importance of the distinction between mis

ing obtained by mistake and misrepresentation. The facts are so briefly stated, that it is impossible to say, with certainty, on what ground the decision proceeded. If there was any intentional misrepresentation in the case, either about its facts or law, that would be a proper ground for affording relief; and it is stated in a report of the case, 2 Jac. & Walk., 205, that the complainant alleged in his bill that he had been surprised and imposed upon by his brother and the school master. And Justice Bronson continues further: "In the report by Mosely, Lord Chancellor King is made to say that the maxim of law, ignorantia juris non excusat, was in regard to the public: that ignorance cannot be pleaded in excuse of crime, but did not hold in civil cases. Mosely is not a book of very high authority 5 Burr., 2629; 3 Anstr., 861; and I think it much more probable that the case turned on the ground of surprise and imposition. than that the chancellor made use of the language imputed to him." Chief Justice Marshall cited this case in Hunt v. Rousmanier, when first before the court, 8 Wheat., 214, with the qualifying remark, 'if it be law,' and he added, that there were certainly strong objections to the decision. Mr. Justice Story, in commenting on the language imputed to Lord Chancellor King, says it is utterly irreconcilable with the well-established doctrine, both of courts of law and courts of equity." It may then be submitted that the distinction before us receives no support whatever from the case, which has been relied upon in its defense. Willard's Eq. Jur., p. 60; Lawrence v. Beaubien, 2 Bailey's S. C. R., 623, is a decision directly to the effect that such a distinction should be maintained, and relief granted in the one case and refused in the other. Bronson, J., is, however, of the opinion that the decision in that case "rests upon no solid foundation." And in Haven v. Foster, 9 Pick., 112, the point was elaborately discussed by counsel; and the court, though deciding the case upon other grounds, clearly held that the principle ignorantia juris non excusat was applicable alike to civil and criminal proceeding; that every man is presumed to know the law of the land. In Shotwell v. Murray, 1 John.'s Ch., 512, Kent, Ch., holds ignorance of the law to be a very dangerous plea, whether applied to rules of civil conduct or to duties of natural and moral obligation. The case of Hunt v. Rousmanier, 8 Wheat., 174, it is thought cannot be quoted as an authority to uphold the existence of any distinction between ignorance of the law and mistake of the law. Willard's Eq. Jur., p. 62. There are, however, other cases; and these are considered by Paige, senator, in Champlin v. Laytin, to a different effect from the opinion of Justice Bronson. "I am prepared," says the learned senator, "to assent to the proposition of the vice-chancellor, that a contract entered into under an actual mistake of the law of the part of both the contracting parties, by which the object and end of their contract, according to its intent and meaning, cannot be accomplished, is as liable to be set aside as a contract founded in mistake of matters of fact. The proper distinction, in my judgment, is taken in the case of Lawrence v. Beaubien, 2 Bailey's (S. C. R.), 623; Lowndes v. Chisholm, 2 McCord's (S. C. R.), 455 (1827), and Executors of Hopkins v. Maryck, 1 Hill.'s Ch. Cas. (S. C. R.), 250 (1833), between a mistake of the law and mere ignorance of the law. This question, it seems to me, was in those cases correctly decided." * * Johnson, J., in Lawrence v. Beaubien, 2 Bailey, 623, says: "All the difficulty and confusion which have grown out of the application of the maxim ignorantia juris neminem excusat, appears to me to have originated in confounding the terms ignorance and mistake. The former is passive and does not presume to reason, but the latter presumes to know, when it does not, and supplies palpable evidence of its existence." He further says, in Executors of Hopkins v. Maryck, "that a mere ignorance of the law is not susceptible of proof, and therefore cannot be relieved; but that a mistake of law may be proved, and, when proved, relief may be afforded." Sparks v. White, 7 Humph., 86, seems, at least, in some degree, to present the true doctrine of equity upon this point. Mere ignorance of the law, it is there said, will not authorize a court of chancery to set aside a contract; but if that ignorance be superinduced by the other party, or if there be a misplaced confidence, or if advantage be taken of weakness of intel

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