defendant says, not that there was a contract which for some special reason is voidable at his option, but that the alleged agreement never had any existence. B. As plaintiff at law, when he has actually paid money as in performance of a supposed valid agreement, and in ignorance of the facts which exclude the reality of such agreement. He may recover back his money so paid by the action for money received (a), just as he might have resisted paying it by a simple traverse of the alleged agreement: here he asserts that there was a total absence of consideration for the payment: he paid on the supposition that he was discharging an obligation, whereas there was in truth no obligation to be discharged. c. As defendant in equity resisting enforcement of any equitable right claimed under the transaction (b). D. As plaintiff in equity seeking to have the transaction declared void and to be relieved from any possible claims in respect thereof (V). ment. On the other hand, although he is entitled to treat the Election to adopt supposed agreement as void, and is not as a rule prejudiced by originally anything he may have done in ignorance of the true state of the void agreefacts, yet after that state of facts has come to his knowledge he may nevertheless elect to treat the agreement as subsisting or, as it would be more correct to say, he may carry into execution by the light of correct knowledge the former intention which was frustrated by want of the elements necessary to the formation of any valid agreement. It is not that he confirms the original transaction (except in a case where there is also misrepresentation, see p. 403), for there is nothing to confirm, but he enters into a new one. And if his true consent goes with this, he is of course bound, so far as consent can bind him. It might be thought to follow that in cases within the Statute of Frauds or any other statute requiring certain forms to be observed, we must look not to the original void and improperly (a) E.g., Cox v. Prentice, 3 M. & S. 348. (b) E.g., the cross suits of Vorley v. Cooke, Cooke v. Vorley, 1 Giff. 230. Before the Judicature Acts a court of equity would not set aside a deed at the instance of a defendant. An original or cross suit had to be instituted for the purpose: Jacobs v. Richards, 18 Beav. 300. It is con- Mistake in intention: occurs in so-called agreement, but to the subsequent election or confirmation in which the only real agreement is to be found, to see if the requirements of the statute have been complied with. No express authority has been met with on this point. But analogy is in favour of a deliberate adoption of the form already observed being held sufficient for the purpose of the new contract ("). PART 3. MISTAKE IN EXPRESSING TRUE CONSENT. This occurs when persons desiring to express an intention expressing which when expressed carries with it legal consequences have generally by mistake used terms which do not accurately represent their writing. real intention. As a rule it can occur only when the intention is expressed in writing. It is not impossible to imagine similar difficulties arising on verbal contracts, as for example if the discourse were carried on in a language imperfectly understood by one or both of the speakers. But we are not aware that anything of this kind has been the subject of judicial decision (¿). The general result of persons talking at cross purposes is that there is no real agreement at all. This class of cases has already been dealt with. We are now concerned with those where there does exist a real agreement between the parties, only wrongly expressed. Such mistakes as we are now about to consider are not wholly disregarded by courts of law; but they are fully and adequately dealt with only by the special jurisdiction of courts of equity. We shall see that this jurisdiction is exercised with much caution and within carefully defined limits. Classification of cases ac cording construc- On the whole the cases of mistake in expressing intention fall into three classes: 1. Those which are sufficiently remedied by the general rules of construction applied both at law and in equity. 2. Those which are remedied by rules of construction applied by courts of equity but not by courts of law. 3. Those which require peculiar remedies administered by courts of equity. We proceed to take the classes of cases above mentioned in order. Special remedies. (b) See however Phillips v. Bis tolli, 2 B. & C. 511, which comes near the supposed case. 1. Rules common to Law and Equity. Certain simple and obvious forms of mistaken expression can Clerical be set right without any special remedies by the ordinary rules errors, &c. of construction which are applied equally by common law and equity. Such are all trifling mechanical mistakes, clerical, verbal, or grammatical errors (a), omissions which may be supplied with certainty from the context (b), and even more substantial errors when the instrument itself affords the means of correcting them. It has long been established that "false or incongruous Latin or English seldom or never hurteth a deed for the rules are, Falsa orthographia non vitiat chartam. Falsa grammatica non vitiat concessionem." "Mala grammatica non vitiat chartam : neither false Latin nor false English will make a deed void when the intent of the parties doth plainly appear" (c). intent prevails over mistaken, Similar in principle, but of wider scope, is the rule that General "greater regard is to be had to the clear intent of the parties than to any particular words which they may have used in the particular, expression of their intent" (d). In a modern case in the House or repug of Lords the rule was laid down and acted upon that "both nant expressions. courts of law and of equity may correct an obvious mistake on the face of an instrument without the slightest difficulty" (e). Here a draft agreement for a separation deed had by mistake been copied so as to contain a stipulation that the husband should be indemnified against his own debts: but it was held that the context and the nature of the transaction clearly showed that the wife's debts were meant, and that in framing the deed to be executed under the direction of the Court in pursuance of the agreement the mistake must be corrected accordingly. So the Court may presume from the mere inspection of a settlement that (a) Cp. per Lord Mansfield (on a will) 3 Burr. 1635: "Every inaccuracy of grammar, every impropriety of terms, shall be corrected by the general meaning, if that be clear and manifest." (b) For a striking case of omission supplied by a court of law in a will see Doe d. Leach v. Micklem, 6 East 486, where an alternative clause being imperfect the missing alternative was supplied as obviously omitted and as to implying an omitted case where there are limita- (c) Shepp. Touchst. 55, 87: cp. (d) Per Cur. (Ex. Ch.), Ford v. Beech, 11 Q. B. at p. 866, 17 L. J. Q. B. at p. 116. (e) Wilson v. Wilson, 5 H. L. C. 40, 66, per Lord St. Leonards, and see his note, V. & P. 171. General words restrained by context. words which, though they make sense, give a result which is unreasonable and repugnant to the general intention and to the usual frame of such instruments, were inserted by mistake (a). An agreement has even been set aside chiefly, if not entirely, on the ground that the unreasonable character of it was enough to satisfy the Court that neither party could have understood its true effect: such at least appears to be the meaning of Lord Eldon's phrase, "a surprise on both parties" (b). The agreement itself purported to bind the tenant of a leasehold renewable at arbitrary (and in fact always increasing) fines at intervals of seven years to grant an underlease at a fixed rent with a perpetual right of renewal. The lessor was in his last sickness, and there was evidence that he was not fit to attend to business. Charges of fraud were made, as usual in such cases, but not sustained the decision might however have been put on the ground of undue influence, and was so to some extent by Lord Redesdale. Again, courts of law as well as courts of equity will restrain the effect of general words if it sufficiently appears by the context that they were not intended to convey their apparent unqualified meaning. It was held in Browning v. Wright (c) that a general covenant for title might be restrained by special covenants among which it occurred. And the same principle was again deliberately asserted shortly afterwards (in a case to the particular facts of which it was however held not to apply) : : "However general the words of a covenant may be if standing alone, yet if from other covenants in the same deed it is plainly and irresistibly to be inferred that the party could not have intended to use the words in the general sense which they import, the Court will limit the operation of the general words" (d). Similarly the effect of general words of conveyance is confined to property ejusdem generis with that which has been specifically (a) Re De la Touche's settlement, 10 Eq. 599, 603 where however the mistake was also established by evidence. (b) Willan v. Willan, 15 Ves. 76, 84; affirmed in Dom. Proc. 2 Dow 275, 278. (c) 2 B. & P. 13, 26: but it was 38 also thought the better construction to take the clause in question being actually part of a special covenant, and so no general nant at all. cove (d) Hesse v. Stevenson, 3 B. & P. 565, 574. described and conveyed (a). When there is a specific description of a particular kind of property, followed by words which prima facie would be sufficient to include other property of the same kind, it has been held that those words do not include the property not specifically described, on the principle expressio unius est exclusio alterius (b). rules of Before we deal with the following heads it will be relevant to Observa observe that the questions arising under them are for the most tions on part either questions of evidence, or mixed questions of evidence evidence and construction. This demands some preliminary explanation. as connectThe end proposed is to give effect to the true intention of the parties concerned. Intention has to be inferred from words, or conduct, or both. In making these inferences conduct must generally be interpreted, and words may often be interpreted, by reference to other relevant circumstances of the transaction. ed with the follow ing heads. struction. And the rules which guide a court of justice in determining Evidence of what things it may take notice for the purpose of such infer- and conences, and in what manner such things may be brought to its notice-in other words, what facts are relevant, and what proof of such facts is required-are rules of evidence (c). A rule of construction is a rule for determining the inference to be drawn from a fact of a particular class when duly brought under the notice of the Court according to the rules of evidencethe fact, namely, that persons have used words or combinations of words such as come within the general proposition affirmed by the rule. The name rule of construction" is confined by 66 (a) Rooke v. Lord Kensington, 2 K. & J. 753, 771. (b) Denn v. Wilford, 8 Dow. & Ry. 549. The case was a curious one. A fine had been levied of (inter alia) twelve messuages and twenty acres of land in Chelsea. The conusor had less than twenty acres of land in Chelsea, but nineteen messuages. It was decided that although all the messuages would have passed under the general description of land if no less number of messuages had been mentioned, yet the mention of twelve messuages prevented any greater number from passing under the description of (c) See the arrangement of the |