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Obviously this testimony cannot be true, at least in the way in which it is stated, because it appears from all the evidence that McMurray knew nothing about the contents of the deed when he applied to Carrell for it, with the statement that he wanted to have his counsel examine it. He could not, therefore, have told him at that time that the deed gave him the corn, because he didn't know anything about the deed, even if he were capable of construing it. And in the same cross-examination, and prior thereto, this testimony appears :

"Q. Did you have any further conversation about the corn on that trip (that is, the trip to Springdale, when the defendant went to examine the farm]? A. It was understood- I don't remember the wording. We had an understanding, if we traded at Springdale on the terms as outlined there, that Mr. Carrell was to keep the rent corn. Q. When you left Springdale to come to Cameron, the understanding was that Carrell was to get the rent corn? A. Yes, sir; and I was to get the cost of my goods in the house at Cameron. Q. After that time, and up to and including the time when the goods were turned over to Carrell, did Carrell ever agree you were to have the rent corn? A. Yes, sir; he said if I could get it under the contract I could have it. Q. Did you understand from that that he had surrendered his claim to the rent corn? A. I told him that contract would take the corn, and that under the contract made Saturday it was mine, I didn't want any lawsuit or trouble; and he said, 'If you cannot get it under the contract, you (annot get it any other way. Q. Did you understand from Carrell that he had surrendered his claim to the rent corn? A. Well, I don't know that I did. I don't know that he had surrendered. My impression was he thought under the contract he could still hold the corn."

I take it this testimony is true, and what Mr. McMurray said about the deed is untrue. Both cannot be true. It must be remembered that, when both the deed and the written agreement of July 14th were drafted and signed, neither of them embraced the full agreement of the parties. Both parties agreed that there was no controversy between them as to the terms of the oral agreement at Springdale, so far as it related to the rent corn and the right to the possession of the land for 1900; and both parties agreed that there was no controversy at Cameron as to the rent corn and the possession of the land for 1900 up to the time they signed the agreement of July 14th. The controversy began on Monday morning, July 16th, after the rain had fallen on the night of the 14th of July previous. It is not contended that defendant gave any directions to the draftsman as to the contents of the deed, but it stands admitted that the plaintiff advised the draftsman that complainant was to retain the rents and the possession of the land for the year 1900; but the draftsman did not include the reservation of either in the deed. On the other hand, complainant gave no instructions as to the written agreement of July 11th. Defendant did that, and he also informed the draftsman of the agreement that the rents of 1900 were to go to the complainant; but Adkins did not include any reservation of the rents in the agreement. The mistake, therefore, was in both instances the mistake of the draftsman. The terms of the agreement were not misunderstood by either of the parties, and no controversy had arisen about the rents until the rain had fallen on the night of July 14th, after which I think the

conclusion is irresistible that defendant decided that he had made a bad bargain and set to work to rue the contract or get the rent corn in plain violation of his agreement. A fair consideration of all the evidence leaves no reasonable doubt on this point. The mistake as to the legal effect of the first written agreement, and the deed when drawn, was mutual, and remained so until the rain fell, whereupon the defendant, in his effort to escape his agreement, gained from his attorney the knowledge of the legal effect of the deed, and sought to gain a legal advantage by disregarding his agreement as he admits it was originally made. In his effort to do so he misled the plaintiff, both by concealing his knowledge of the legal effect of the deed and by representing to plaintiff that the agreement, and not the deed, gave him the corn. It required no legal advice to apprise defendant that his conduct in these respects was both unfair and unconscionable, and no court should suffer itself used to permit such a result as he seeks to consummate.

In volume 24, American and English Encyclopædia of Law (2d Ed.) p. 648 et seq., the author states the rules governing the reformation of deeds as follows:

"(1) The most usual ground for granting the reformation of an instrument is that through a mistake it does not correctly set forth the true intent of the parties. Thus a clerical mistake of the scrivener who drew up the instrument may be corrected. (2) In order to grant relief on the ground of mistake, the mistake must have been mutual. The minds of the parties must have met upon some agreement other than that which the instrument expresses. (3) In some jurisdictions the court will grant reformation in all cases of mistake, f.ven though the mistake be one of law, such as, for example, the legal effect of terms employed in the writing. But in other jurisdictions the courts hold that relief can be granted only in case of a mistake of fact. (4) The presumption always is that a written instrument expresses the true intent of the parties, and hence the burden of proof is upon the party seeking reformation, who must, in order to obtain the relief, furnish clear and satisfactory evidence that the circumstances are such as to warrant the interposition of a court of equity to grant the relief asked for. (5) But where the proofs are satisfactory, and the mistake is made entirely plain, relief will not be denied merely because there is conflicting testimony. (6) The existence of a mistake may be shown by parol evidence. (7) It has been asserted that, while fraud has been a ground for rescission, it is not a ground for reformation; but the better rule is that fraud may be a ground for reformation, especially where it is accompanied by mistake, as where there is a mistake of one of the par. ties accompanied by fraud on the part of the other."

The text notes are supported by numerous decisions, state and federal. In different jurisdictions there is a hopeless conflict. No profit could result from an effort to distinguish classes of cases, or from any review I might make. I am of the opinion that the deed in this case should be reformed on either the first, second, or seventh grounds quoted supra. I think the old rule of equity, confining the reformation of instruments to mistakes of fact only, is in modern times gradually being relaxed in all the courts, and decisions enforcing exceptions to the rule resting on special circumstances have well-nigh undermined the rule itself. Courts do not make contracts for the parties, whether the matters complained of result from errors of law or fact, but will correct errors so as to enforce contracts, whether they be errors of law or fact, and whether tainted with

fraud or not, if it is made clear that the contract does not sinbody the agreement of the parties. This view is sanctioned in a note to Williams v. Hamilton (Iowa) 65 Am. St. Rep. 489 :

“A perusal of adjudged cases also justifies the statement that the distinction between errors of law and errors of fact is of much less importance in the reformation of contracts than is commonly supposed, that it has bad very little practical effect upon the decisions of the court, and that, while not ignored, it is not unfrequently mixed up with other considerations which outweigh it. 'It is no longer true, if it ever was,' says Torrance, J., in Park Bros. & Co. v. Blodgett & Clapp Co., 64 Conn, 28, 33, 29 Atl. 133, 'that a mistake of law no ground for relief in any case, as will be seen in the cases hereinafter cited. Whether, then, the mistake in question be regarded as one of law or of fact is not of much consequence. The more important question is whether it is such a mistake as a court of equity will correct; and this, perhaps, can only, or, at least, can best, be determined by seeing whether it falls within any of the well-recognized classes of cases in which such relief is furnished.'”

In State v. Paup, 13 Ark. 137, 56 Am. Dec. 303, after stating the general rule, the court said: "Ignorance of law excuses no man. And, quoting from an authority cited to the effect that "there are cases in which a court will interfere on the ground of such mistake in order to relieve a party from the effect of a contract, as, for instance, if one is ignorant of a matter of law involved in the transaction, and another one, knowing it to be so, takes advantage of such circumstances to make the contract, here the court will relieve, although, perhaps, more probably on account of fraud in the one party than of ignorance of law in the other.” The Supreme Court of Arkansas says:

“So, if both parties should be ignorant of a matter of law, and should enter into a contract for a particular object, the result whereof would by law be different from what they mutually intended, here on account of the surprise, or immediate result of the mistake by both, there can be no great reason why the court should not interfere in order to prevent the enforcement of the contract and relieve from the unexpected consequence of it. To enforce it would be to permit one party to take an unconscientious advantage of the other and to derive a benefit from a contract which neither of them intended it should produce."

In Bank v. Arndt, 69 Ark. 410, 65 S. W. 1052, the whole subject is ably discussed by Judge Battle on a motion for rehearing, and it may be inferred, therefore, was thoroughly considered, and he clearly recognizes the principle announced. Indeed, in reviewing the cases, as it is not unusual with Chief Justice Marshall's decisions, all the cases go back to Hunt v. Rousmanier, 8 Wheat. 174, in which he says, at page 175 of 8 Wheat. [5 L. Ed. 589]:

“Although we do not find the naked principle that relief may be granted on account of ignorance of law asserted in the books, we find no case in which it has been decided that a plain and acknowledged mistake of law is beyond the reach of equity."

In reviewing the authorities in Bank v. Arndt, supra, Judge Battle quotes, in support of that decision, from Story's Equity Jurisprudence, Bispham's Equity, Pomeroy's Equity Jurisprudence, Snell v. Insurance Company, 98 U. S. 85, 25 L. Ed. 52, and Griswold v. Hazard, 141 U. S. 260, 11 Sup. Ct. 972, 999, 35 L. Ed. 678.

To avoid extending this opinion, which I have found it difficult

to shorten because of the evidence, I cite, as sustaining the conclusion reached, Champlin et al. v. Laytin, 1 Edw. Ch. 472; Clack v. Hadley et al. (Tenn. Ch. App.) 64 S. W. 403; Pickett et al. v. Merchants' National Bank of Memphis et al., 32 Ark. 352; Thompson v. Phænix Ins. Company, 136 U. S. 295 et seq., 10 Sup. Ct. 1019, 34 L. Ed. 403; Trenton Terra Cotta Co. v. Clay Shingle Co. (C. C.) 80 Fed. 46; Fulton v. Colwell et al., 112 Fed. 831, 50 C. C. A. 537; Chicago & A. Ry. Co. v. Green (C. C.) 114 Fed. 676; Elliott v. Sackett et al., 108 U. S. 132, 2 Sup. Ct. 375, 27 L. Ed. 678. In Walden v. Skinner, 101 U. S. 577, 25 L. Ed. 963, quoting from page 583 of 101 U. S., the Supreme Court say:

Decisions of undoubted authority hold that where an instrument is drawn and executed that professes or is intended to carry into execution an agreement, which is in writing or by parol, previously made between the parties, but which by mistake of the draftsman, either as to fact or law, does not fulfill, or which violates, the manifest intention of the parties to the agreement, equity will correct the mistake, so as to produce a conformity of the instrument to the agreement; the reason of the rule being that the execution of agreements fairly and legally made is one of the peculiar branches of equity jurisdiction, and, if the instrument intended to execute the agreement be from any cause insufficient for that purpose, the agreement remains as much unexecuted as if the party had refused altogether to comply with his agreement, and a court of equity will, in the exercise of its acknowledged jurisdiction, afford relief in the one case, as well as in the other, by compelling the delinquent party to perform his undertaking according to the terms of it and the manifest intention of the parties. Hunt v. Rousmanier's Adm'rs, i Pet. 1, 13 [7 L. Ed. 27]; Id., 8 Wheat, 174, 211 [5 L. Ed. 589). Even a judg. ment, when confessed, if the agreement was made under a clear mistake. will be set aside, if application be made and the mistake shown while the judgment is within the power of the court. Such an agreement, even when mad a rule of court, will not be enforced, if made under a mistake, if seasonable application be made to set it aside; and, 'if the judgment be no longer in the power of the court, relief,' says Mr. Chief Justice Marshall, 'may be obtained in a court of chancery.' The Hiram, 1 Wheat. 440, 444 [4 L. Ed. 131)."

In Chicago & A. Ry. Company v. Green, supra, at page 678 of 114 Fed., Judge Philips uses this language:

"The same rule respecting the province of a court of equity to correct mistakes is laid down by Bispham in his work on the Principles of Equity (4th Ed.) $ 185, as follows: 'A mistake exists when a person, under some erroneous conviction of law or fact, does or omits to do some act which, but for the erroneous conviction, he would not have done or omitted.' And this principle has application to the omission to write into the release the additional consideration of the undertaking that the railway company would assume the payment of the doctor's bill. Thus, Mr. Bispham, at section 190. says that 'where there was an agreement that part of the purchase money of certain real estate should be paid by a judgment note for a certain sum, with interest, and the words "with interest" were omitted from the note by the mistake of the scrivener by whom it was written, it was held that this was such a mistake as equity would correct.' And if in fact this additional consideration to pay the doctor's bill entered into the contract of settlement and was not inserted in the release, either from inadvertence or misconception of the law as to the necessity of inserting it in the instrument to make it operative as a release, such fact does not deny to complainant the assistance of a court of equity to reform it in this respect. As said by the Supreme Court of this state in Corrigan v. Tiernay (Mo.) 13 S. W. 401: 'In such cases equity will reform the contract; and this, too, though the instrument fails to express the contract which the parties made, by reason of the mistake of law.' Says Pomeroy: 'In short, if a written instrument fails to express

the intention which the parties had in making the contract which it purports to contain, equity will grant its relief, affirmative or defensive, although the failure may have resulted from a mistake as to the legal meaning and operation of the terms or language employed in the writing.'”

The testimony in the case shows that the farm was surrendered by the plaintiff to the defendant before the 1st of January, 1901. A decree, therefore, reforming the deed at this time, would be of no service to the complainant, and would be futile. Courts of equity do not render decrees which give no relief. A decree, therefore, should be entered enjoining the defendant from the prosecution of his suit at law for the rents, pasturage, possession, or damages for the retention of the place from the date of the deed to the 1st day of January, 1901.

Such will be the decree of the court. It is so ordered.

THE C. R. HOYT.

(District Court, D. New Jersey. March 31, 1905.) 1. COLLISION-STEAM VESSELS MEETING-VIOLATION OF RULES.

The tug Hoyt, passing up East river on the Brooklyn side in the daytime, exchanged crossing signals with the ferryboat Fulton, crossing from New York; the Hoyt, as the privileged vessel, being required to keep her course and speed, and the Fulton to cross under her stern. The Fulton, however, held her course, and came so close to the Hoyt that the latter, to avoid collision, when under the Fulton's bows starboarded her helm, throwing her head nearly across the river. During such time the tug No. 9 was coming down the river, and had given three signals to the Hoyt for passing port and port, none of which were answered. After the Hoyt had passed the Fulton, both she and the No. 9 gave alarm signals, ported, and reversed, but were then so near together that a collision occurred. Held, that the danger of the Hoyt from the Fulton, which was within full view of the pilot of the No. 9, was a “special circumstance" within the meaning of the rules (23 Stat. 438 et seq., rule 23) which required the latter to slacken speed or to stop and reverse, and that she was in fault for keeping her course and speed; that the Hoyt was also in fault for failing to answer the signals of the No. 9, although not for her maneuver in passing the Fulton.

[Ed. Note.-Collision. Signals of meeting vessels, see note to The New

York, 30 C. C. A. 630.] 2. SAME-Division OF DAMAGES.

Under the American, and also the English, rule in admiralty, where each of two vessels contributes by her fault to a collision, the damages will be equally divided.

[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Collision, & 296.] In Admiralty. Libel and cross-libel for collision. James J. Macklin, for libelant. Carpenter & Park, for cross-libelant.

LANNING, District Judge. On August 17, 1895, a collision occurred in the East river, New York, just below the Brooklyn Bridge, and just east of the middle of the river, between steam tug No. 9 and the steam tug C. R. Hoyt. Each of the vessels claims damages against the other. The libelant is the owner of No. 9.

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