and the defendant by a cross bill sought the performance of the written contract as it stood. "I will not say," said his lordship, "that upon the evidence without the answer I should not have had so much doubt, whether I ought not to rectify the agreement upon which Stangroom relies, as to take more time to consider, whether the bill should be dismissed, (d) language which seems to imply that, had the evidence been satisfactory, the contract might have been rectified and performed.

§ 795. In a case before Knight Bruce, V. C., there was an assignment by deed of a farming lease and stock for a valuable consideration stated in the deed, and it was proved by parol that, over and above this consideration, there was a contract to pay the plaintiff £40 a year for his life, and to find him during the same period a house worth £10 a year; the assignment having been carried into effect, the court granted specific performance of the parol contract at the suit of the annuitant:(e) the case was put on the ground of an additional consideration, which may be proved by parol when not inconsistent with the instrument. (f) It may be observed that, where such a consideration is executory and is alleged by the plaintiff, and a specific performance of it obtained, the case seems to afford one instance in which a plaintiff may obtain specific performance of a contract with a parol variation.

§ 796. In the case of Martin v. Pycroft, (g) the plaintiff alleged a written contract for a lease, and in addition a parol term-namely, that he was to pay the defendant £200 for it --and prayed specific performance: Parker, V. C., refused it on the ground that the plaintiff himself showed that a material term in the contract had been omitted, and that the specific performance of such a contract was inconsistent with the Statute of Frauds. This decision was overruled by the lords justices, who held a written contract to be, in the absence of fraud or mistake, binding at law and in equity according to its terms, although verbally a term was

(d) 6 Ves., 339.

eClifford v Turrell, 1 Y. & C. C. C., 138; c.. Keenan v. Handley, 12 W. R, 932 (where a contract to grant an annuity in consideration of discontinuance of cohabitation was enforced).

Robinson v. Page, 3 Russ., 114, the parol
variations to which the plaintiff by his bill
offered to submit were considered by the
court not to affect the plaintiff's rights: the
defendant was allowed to elect whether they
should be carried into effect or not, by reason
of the plaintiff's offer, and not of any original

(f) Rex v. Scammonden, 3 T. R., 474.
(g) 2 De G. M. & G., 785. In the case of right in the defendant.

agreed to which has not been inserted in the document, subject to this, that the defendant may call on the court to be neutral, unless the plaintiff will consent to the omitted. term, and that the case under consideration came within that rule. The term was here, however, set up not by the defendant, but by the plaintiff, and the case seems, therefore, to show that the plaintiff may allege a parol variation, which, if set up by the defendant and submitted to by the plaintiff, might have been introduced into the contract as specifically performed by the court. It thus seems to establish a very important limitation on the generality of the rule, that a plaintiff can never allege such a variation.

§ 797. In this state of the authorities, it may be interesting to state the opinion of American jurists. Though the doctrine that the plaintiff can never adduce parol evidence of a variation in suits for specific performance has been acted on by some of the courts of that country, (h) it has been combated by some of its most eminent jurists. "It is in effect," says Mr. Justice Story, "a declaration that parol evidence shall be admissible to correct a writing as against a plaintiff, but not in favor of a plaintiff seeking a specific performance. There is, therefore, no mutuality or equality in the operation of the doctrine. The ground is very clear, that a court of equity ought not to enforce a contract where there is a mistake, against the defendant insisting upon and establishing the mistake; for it would be inequitable and unconscientious. And if the mistake is vital to the contract, there is a like clear ground why equity should interfere at the instance of the party as plaintiff, and cancel it; and if the mistake is partial only, why, at his instance, it should reform it. In these cases the remedial justice is equal; and the parol evidence to establish it is equally open to both parties to use as proof. Why should not the party aggrieved by a mistake in an agreement have relief in all cases, where he is plaintiff, as well as where he is defendant? Why should not parol evidence be equally admissible to establish a mistake as the foundation of relief in each case? The rules of evidence ought certainly to work equally for the benefit of each party."(i)

(h) 1 Story, Eq. Jur., § 161.

(i) Story, Eq. Jur., § 161 n.

§ 798. In delivering judgment in the case of Keisselbrack v. Livingstone, (j) Mr. Chancellor Kent held the following language: "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 the decree of the court as when made accurate by the act of the parties." (k)'

§ 799. The judicature act, 1873 (§ 24, subsection 7), requires the high court in any cause to grant all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal and equitable claim properly brought forward by them respectively in such cause, so that so far as possible all matters in controversy between the said parties respectively may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided. It is submitted that under this provision the high court could have no difficulty in entertaining an action for the reforma

(j) 4 John.'s Ch. Rep., 148.

(k) See per Lord Eldon in Cook v. Richards, 10 Ves., 441.

It has become an established rule in this country, that the plaintiff is as fully entitled, in cases of this kind, to equitable relief, upon an agreement so varied by parol, as the defendant. Equity will therefore correct an agreement according to its true intent, when the variation is clearly established by evidence aliunde, and enforce it as corrected. Rogers v. Atkinson, 1 Kelly, 12; Coot v. Craig, 2 Hen. & Munf., 618; Rhode Island v. Massachusetts, 15 Pet., 233. Gillespie v. Moon, 2 John.'s Ch., 585; Smith v. Allen, Saxton, 43; Dismukes v. Terry, Walker, 197; Hendrickson v. Jones, Saxton, 562; Chamberlain v. Thompson, 10 Conn., 243; Cobb v. Preston, 2 Root, 78. Sandford v. Washburn, id., 449; Elmore v. Austin, id., 415; Wilson v. Henderson, 4 Scam., 13. Shelly . Smith, 2 A. K. Marsh., 504; Gooding v. McAllister, 9 How.'s Pr. Rep, 123. Therefore, where two tenants in common agreed to make partition, according to the award of referees, executed deeds, and took possession under them, and it subsequently appeared that, in the plaintiff's deed, a tract which had been assigned to him, had been omitted by mistake, it was held that the mistake should be rectified, and that a specific performance of the contract, as to the tract omitted, should be decreed. Tilton v. Tilton, 9 N. H., 385. And see Coles v. Brown, 10 Paige, 535, a case decided by Walworth, chancellor. See, also, Rosevelt v. Fulton, 2 Cow., 129.

tion of a contract, and for the specific performance of such reformed contract, in every case in which the Statute of Frauds did not create a bar.

§ 800. It may be added that there are cases somewhat resembling specific performance, where, in the same suit, the plaintiff has had an instrument rectified, and then obtained consequential relief; as where a bond and deposit of deeds were given to secure an advance, and the bond, by mistake, appeared to be usurious; the plaintiff proved the mistake, had the bond rectified, and was held entitled to the consequential relief to which an ordinary obligee and equitable mortgagee is entitled. (7) In another case a client entered into a contract with his solicitor for the payment of a fixed sum of money in lieu of costs, and the contract contained mistakes as to the name and rights of the client, which, if construed strictly, would have excluded the solicitor from all rights under the contract. In consequence of these mistakes, the solicitor, by his bill, alleged that he had no remedy at law, and accordingly prayed that the contract might be rectified, and an order made for payment of the sum of money under the contract, as if, at the time of its execution, it had expressed the intention of the parties: the court made a decree directing the payment of the money.(m)

§ 801. It may here be added that a misdescription in the contract may be attributable to (1) the plaintiff alone, or (2) the defendant alone, or (3) both parties; and in either of the former cases it may be either fraudulent or innocent. If it be fraudulent, the party guilty of the fraud of course cannot avail himself of it in any way: if it be innocent, then (1) if it be attributable to the plaintiff alone and induce mistake, if falls under the head of mistake induced by the plaintiff ;(n) (2) if it be attributable to the defendant alone, it comes under the head of mistake purely due to the defendant;(0) and lastly (3) if it be attributable to both parties, it falls under the head of common error or mistake.'

(1) Hodgkinson v. Wyatt, 9 Beav, 566.
(m) Stedman v. Collett, 17 Beav., 608.
(n) Supra, § 726 et seq., § 780.

(0) Supra, § 728 et seq.
(p) Supra, § 749 et seq; § 781.

1 Contemporaneous writings in cases of mistake in written contract.] Where it is sought to vary a written contract by parol proof, the court will take into consideration acts done under the agreement, and also examine contemporaneous

writings between the parties if they were written within a reasonable time, and relate to the same subject matter. Winnipissesgee Manuf. Co. v. Perley, 46 N. H., 83.

Waiver of written contract by parol proof.] Parol evidence may be introduced to show that an executory contract, which has been reduced to writing, but not under seal, has been discharged, abandoned or waived. But where the agree ment to rescind is established by parol proof only, the evidence must be very clear of the intention to change the written contract. Laner v. Lee, 42 Pa. St., 165; Buel v. Miller, 4 N. H., 196; Goucher v. Martin, 9 Watts, 106; Bottsford v. Buer, 2 John.'s Ch., 405; Buckhouse v. Crosby, 2 Eq. Cas. Ab., 32; Boyce v. McCullock, 3 Watts & Serg., 429; Tolson v. Tolson, 10 Mo., 736; Bowser v. Cravener, 56 Pa. St., 132.

Mistake in award; correction.] Where there is clearly a mistake in an award, a court of equity will correct it. Kerr on Fraud and Mis., 446, 448; Bunpass v. Webb, 4 Porter, 65: Wheatly v. Wartin, 6 Leigh., 62; Ryan v. Blunt, 1 Dev. Eq., 382; Pleasant v. Ross, 1 Wash. (Va.), 156. An error in judgment on the merits will not be corrected however. Head v. Muir, 3 Rand, 122; Van Courtland v. Underhill, 17 John., 405; Cromwell v. Owings, 6 Har. & John., 10; Radcliffe v. Wightman, 1 McCord's Ch., 408; Rudd v. Jones, 4 Dana, 229; Hurst v. Hurst, 2 Wash. C. C., 127; Burchell v. Marsh, 17 How., 344; Boston Water Power Co. v. Gray, 6 Met., 131.

Settlement of controversies; mistake as to the law.] Where a compromise is entered into to avoid or terminate a litigation, both parties having the same means of knowledge, and there is neither fraud, misrepresentation or undue influence practiced-held, that a mistake as to the law is no reason for setting aside such compromise. The rule is the same where, in fact, only one of the parties has a valid claim, if the parties themselves considered it doubtful. Gordon v. Gordon, 3 Swanst., 463; Lawton v. Campion, 18 Beav., 87; Stewart v. Stewart, 6 Cl. & Fin., 969; Brooke v. Lord Morton, 2 De G. J. & S, 373; Stapleton v. Stapleton, 1 Atk., 2; Luck, ex parte, 4 De G. M. & G., 356; Wheeler v. Smith, 9 How., 55. But the rule is reversed in a case where a party, having no knowledge of a well-settled principle of law, is imposed upon, and made to surrender his property under the pretense that a compromise will be affected. Naylor v. Winch, 1 Sim. & Ster., 555; Jones v. Munroe, 32 Ga.,

181.

Mistake which has reference to both the law and the facts.] In such a case, equity will afford relief, as it forms an exception to the rule. A party reposing confidence in his counsel gave his note for more than he was legally bound to pay; this was done through a mistake of the counsel. Held, that equity would relieve him. Fitzgerald v. Peck, 4 Litt., 125; Gross v. Leber, 47 Pa. St., 520. Mistake as to matters of fact.] In such case, party complaining must not be in fault, and must be reasonably diligent. Leake on Contracts, 182; Jenks v. Fritz, 7 Watts & Serg., 201; Ketchum v. Catlin, 21 Vt., 191; Duke of Beaufort v. Neeld, 12 Cl. & Fin., 248, 286; Merchants' B'k v. McIntyre, 2 Sandf., 431; Wild v. Hillis, 18 L. J. Ch., 170; Jouzin v. Foulmin, 9 Ala., 662; Warner v. Daniels, 1 Woodb. & Minot, 90; Western R. R. Co. v. Babcock, 6 Metc., 346; Copehart v. Moon, 3 Jones' Eq., 178; Lenty v. Hillas, 2 De G. & J., 110; Laub v. Harris, 8 Ga., 546; Daniel v. Mitchell, 1 Story, 172; Ferson v. Sanger, 1 Woodb. & Minot, 138; Hill v. Bush, 19 Ark., 522; Dimon v. Providence R. R. Co., 5 R. I., 130; Taylor v. Fleet, 4 Barb., 95; Penny v. Martin, 4 John.'s Ch., 566; Kite v. Lunpkin, 40 Ga., 506; Custard v. Custard, 75 Tex., 49; Wood v. Patterson, 4 Md.'s Ch., 335; Peterson v. Grover, 20 Me., 363; Upham v. Hamill, 11 R. I., 565.

Equity will reform a contract in order that it shall express the real intent of the parties.] When the phraseology of the contract does not express the true intention of the parties, specific performance will be refused; à court of equity will carry out the real intention of the parties. James v. State Bank, 17 Ála., 69; Mitchel v. Nicholson, 8 Yerg., 194; Quick v. Stuyvesant, 2 Paige's Ch., 84; Mechanics' Bank v. Lynn, 1 Pet., 376; King v. Hamilton, 4 id., 311; Bradbury v. White, 4 Me., 391; Clopton v. Martin, 11 Ala., 187; Frisby v. Ballance, 5 Ill. (4 Scam.), 287; Dulamy v. Rogers 50 Md., 524; Hunt v. Freeman, 1 Ohio, 490; Langdon v. Keith, 9 Vt., 299; Fairstone v. De Camp, 2 C. E. Green,