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case lead to the supposition that a new intent has supervened, there can be no just claim for relief upon the ground of mistake.1 The very circumstance that the final instrument of conveyance or settlement differs from the preliminary contract affords of itself some presumption of an intentional change of purpose or agreement, unless there is some recital in it or some other attendant circumstance which demonstrates that it was merely in pursuance of the original contract. It is upon a similar ground that Courts of Equity as well as Courts of Law act, in holding that where there is a written contract all antecedent propositions, negotiations, and parol interlocutions on the same subject are to be deemed merged in such contract.3

161. In cases of asserted mistake in written contracts where the mistake is to be established by parol evidence, the question has often been mooted how far a Court of Equity ought to be active in granting relief by a specific performance in favor of the party seeking to reform the contract upon such parol evidence, and to obtain performance of it when it shall stand reformed. It is admitted that a defendant against whom a specific performance of a written agreement is sought may insist by way of answer upon the mistake as a bar to such a bill; because he may insist upon any matter which shows it to be inequitable to grant such relief. A Court of Equity is not, like a Court of Law, bound to enforce a written contract; but it may exercise its discretion when a specific performance is sought, and may leave the party to his remedy at law. It will not therefore interfere

11 Fonbl. Eq. B. 1, ch. 3, § 11, note (p); Id. ch. 6, §§ 1, 13; Legg v. Goldwire, Cas. Temp. Talb. 20; West v. Erissey, 2 P. Will. 349, and Mr. Cox's note (1), 355; Beaumont v. Bromley, 1 Turn. & Russ. R. 41; Jeremy on Eq. Jurisd. Pt. 2, ch. 2, pp. 379, 380; Id. 50, 51, 52, 53; ch. 4, § 5, pp. 490, 491; Id. 1 Madd. Eq. Pr. 85 (3d ed.).

2 Ibid.

Rich v. Jackson, 4 Bro. Ch. R. 513; s. c. 6 Ves. 334, note; Pickering v. Dawson, 4 Taunt. 786; Kain v. Old, 2 B. & Cressw. 634; Parkhurst v. Van Cortlandt, 1 John. Ch. R. 273; s. c. 14 John. R. 15; 1 Fonbl. Eq. B. 1, ch. 3, §§ 8, 11; Davis v. Symonds, 1 Cox, R. 402, 404; Vandervoort v. Smith, 2 Cain. R. 155.

* Com. Dig. Chancery, 2 C. 16; Joynes v. Statham, 3 Atk. 388; Garrard v. Grinling, 2 Swanst. R. 257; Pitcairne v. Ogbourne, 2 Ves. 375; Legal v. Miller, 2 Ves. 299; Mason v. Armitage, 13 Ves. 25; Clark v. Grant, 14 Ves. 519; Hepburn v. Dunlop, 1 Wheat. 197; Clowes v. Higginson, 1 Ves. & B. 524; Winch v. Winchester, 1 Ves. & B. R. 375; Ramsbottom v. Golden, 1 Ves. & B. 165; Flood v. Finley, 2 Ball & B. 53; Clark v. Grant, 14 Ves. 519; Gil

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to sustain a bill for a specific performance when it would be against conscience and justice so to do. On the other hand it seems equally clear that a party may as plaintiff have relief against a written contract by having the same set aside and cancelled or modified, whenever it is founded in a mistake of material facts, and it would be unconscientious and unjust for the other party to enforce it at law or in equity. But the case intended to be put differs from each of these. It is where the party plaintiff seeks not to set aside the agreement, but to enforce it when it is reformed and varied by the parol evidence. A very strong inclination of opinion has been repeatedly expressed by the English courts not to decree a specific performance in this latter class of cases; that is to say, not to admit parol evidence to establish a mistake in a written agreement, and then to enforce it as varied and established by that evidence. On various occasions such relief has under such circumstances been denied.2 But it is extremely difficult to perceive the principle upon which such decisions can be supported consistently with the acknowledged exercise of jurisdiction in the court to reform written contracts and to decree relief thereon. In America

lespie v. Moon, 2 John. Ch. R. 585, 598; Townshend v. Stangroom, 6 Ves. 328; Price v. Dyer, 17 Ves. 357.

1 See Ball v. Storie, 1 Sim. & Stu. R. and the cases there cited.

2 See Woolam v. Hearn, 7 Ves. 211; Higginson v. Clowes, 15 Ves. 516; Clinan v. Cooke, 1 Sch. & Lef. 38, 39; Clowes v. Higginson, 1 Ves. & B. 524; Winch v. Winchester, 1 Ves. & B. 375; Clark v. Grant, 14 Ves. 519; Rich v. Jackson, 6 Ves. 335; 4 Bro. Ch. R. 514; Ogilvie v. Foljambe, 3 Meriv. R. 58, 63; Townshend v. Stangroom, 6 Ves. 328; Jeremy on Equity Jurisd. B. 3, Pt. 2, ch. 4, § 1, p. 432; Clark v. Grant, 14 Ves. 519; Baker v. Paine, 1 Ves. 457; Gordon v. Uxbridge, 2 Madd. R. 106; Attorney-Gen. v. Sitwell, 1 Younge & Coll. 559, 582.

3 Mr. Baron Alderson, in Attorney-Gen. v. Sitwell (1 Younge & Coll. 559, 582, 583), expressed a strong opinion against the reforming of a contract and then decreeing the performance of it in equity. In that case the question was whether by a memorandum of agreement to sell a certain manor of the Crown 'with the appurtenances,' an advowson appurtenant or appendant thereto passed; the statute of 17 Edward 2, ch. 13, having distinctly provided that the king shall not convey an advowson without express words to that effect. Mr. Baron Alderson in delivering his judgment said: The second objection is upon the terms of the contract. The plaintiffs professed to sell the manor of Eckington "with the appurtenances; " and as the appurtenances of a manor ordinarily include an advowson appendant or appurtenant, the defendant contends that he is not bound to take the property unless there be a conveyance to him in the terms of the memorandum in which the plaintiffs executed the

Mr. Chancellor Kent, after a most elaborate consideration of the subject, has not hesitated to reject the distinction as unfounded in justice, and has decreed relief to a plaintiff standing in the precise predicament.1 (a)

contract; and that the Crown must either give him the manor without excluding the advowson, or otherwise that the contract ought not to be performed. If the question was one between subject and subject, there would, I think, be great difficulty in decreeing the execution of the contract upon any other terms than those for which the defendant contends. It appears to me quite clear that the memorandum of agreement would carry this advowson under the general words "with the appurtenances." There are various authorities to that effect, and I may more particularly refer to Viner's Abridgment, tit. Prerog. (C. c.) 9. This would have been clear therefore as between subject and subject. And in that case the next question which would have arisen would have been, whether or not, on the ground of mistake, one party not intending to sell, and the other not intending to purchase the advowson, I could have reformed the agreement and have directed the specific performance of it when so reformed. I confess I should have had great difficulty in holding that this could be done; because I cannot help feeling that in the case of an executory agreement, first to reform and then to decree an execution of it would be virtually to repeal the Statute of Frauds. The only ground on which I think the case could have been put would have been that the answer contained an admission of the agreement as stated in the bill; and the parties mutually agreeing that there was a mistake, the case might have fallen within the principle of those cases at law where there is a declaration on an agreement not within the statute, and no issue taken upon the agreement by the plea; because in such case it would seem as if, the agreement of the parties being admitted by the record, the case would no longer be within the statute. I should then have taken time to consider whether, according to the dicta of many venerable judges, I should not have been authorized to reform an executory agreement for the conveyance of an estate, where it was admitted to have been the intention of both parties that a portion of the estate was not to pass. But in my present view of the question it seems to me that the court ought not in any case, where the mistake is denied or not admitted by the answer, to admit parol evidence, and upon that evidence to reform an executory agreement.'

1 Gillespie v. Moon, 2 John. Ch. R. 585; Keiselbrack v. Livingston, 4 John. Ch. R. 144. See also Baker v. Paine, 1 Ves. 456; Shelburne v. Inchiquin, 1 Bro. Ch. R. 339; Joynes v. Statham, 3 Atk. 388; 6 Ves. 337, 338; Ball v. Storie, 1 Sim. & Stu. 210; Burn v. Burn, 8 Ves. 573, 583; 1 Eq. Abridg. 20, Pl. 5; Sims v. Urrey, 2 Ch. Cas. 225; s. c. Freem. R. 16; Jalabert v. Chandos, 1 Eden, R. 372; Pember v. Matthews, 1 Bro. Ch. R. 52; Jones . Sheriff, cited 9 Mod. 88; The Hiram, 1 Wheat. R. 444; Hunt v. Rousmaniere, 8 Wheat. R. 211; 1 Peters, Sup. C. R. 13; Hogan v. Dela

(a) Hitchins v. Pettingill, 58 N. H. 386, and cases cited. See however Osborne v. Phelps, 19 Conn. 62; Elder v. Elder, 10 Maine, 80; Thomas v.

McCormick, 9 Dana, 108; Climer v. Hovey, 15 Mich. 18; Glass v. Hulbert, 102 Mass. 24.

162. Courts of Equity will grant relief in cases of mistake in written contracts, not only when the fact of the mistake is expressly established, but also when it is fairly implied from the nature of the transaction. Thus in cases where there has been a joint loan of money to two or more obligors, and they are by the instrument made jointly liable, but not jointly and severally, ware Insur. Co., 1 Wash. C. C. R. 422; Shelburne v. Inchiquin, 3 Bro. Ch. R. 338; Walker v. Walker, 2 Atk. 98. But see 1 Sch. & Lefr. 39; Kekewick, Dig. Ch. Equity, I. The distinction stated in the text is certainly of a very artificial character, and difficult to be reconciled with the general principles of Courts of Equity. It is in effect 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. Mr. Chancellor Kent has forcibly observed, 'That it cannot make any difference in the reasonableness and justice of the remedy whether the mistake was to the prejudice of one party or the other. If the court has 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. "Res accendent lumina rebus." "' Keisselbrack v. Livingston, 4 Johns. Ch. R. 148, 149. It may be added that if the doctrine be founded upon the impropriety of admitting parol evidence to contradict a written agreement, that rule is not more broken in upon by the admission of it for the plaintiff than it is by the admission of it for the defendant. If the doctrine had been confined to cases arising under the Statute of Frauds, it would, if not more intelligible, at least have been less inconvenient in practice. But it does not appear to have been thus restricted, although the cases in which it has been principally relied on have been of that description. It will often be quite as unconscientious for a defendant to shelter himself under a defence of this sort against a plaintiff seeking the specific performance of a contract and the correction of a mistake, as it will be to enforce a contract against a defendant, which embodies a mistake to his prejudice. See Comyns, Dig. Chancery, 2 C. 4; 2 X. 3; 4 L. 2; AttorneyGen. v. Sitwell, 1 Younge & Coll. R. 583.

the court has reformed the bond and made it joint and several, upon the reasonable presumption from the nature of the transaction that it was so intended by the parties and was omitted by want of skill or by mistake.1 The debt being joint, the natural if not the irresistible inference in such cases is, that it is intended by all the parties that in every event the responsibility should attach to each obligor and to all equally. This can be done only by making the bond several as well as joint; for otherwise, in case of the death of one of the obligors the survivor or survivors only would be liable at law for the debt.2 Indeed it seems now well established as a general principle, that every contract for a joint loan is in equity to be deemed as to the parties borrowing a joint and several contract, whether the transaction be of a mercantile nature or not; for in every such case it may fairly be presumed to be the intention of the parties that the creditor should have the several as well as the joint security of all the borrowers for the repayment of the debt.3 Hence if one of the borrowers should die, the creditor has a right to proceed for immediate relief out of the assets of the deceased party, without claiming any relief against the surviving joint contractors, and without showing that the latter are unable to pay by reason of their insolvency.+

163. But where the inference of a joint original debt or liability is repelled, a Court of Equity will not interfere; for in such a case there is no ground to presume any mistake. This doctrine has been very clearly expounded by Sir William Grant.

1 Simpson v. Vaughan, 2 Atk. 31, 33; Bishop v. Church, 2 Ves. 100, 371; Thomas v. Frazer, 3 Ves. 399; Devaynes v. Noble, Sleech's case, 1 Meriv. R. 538, 539; Sumner v. Powell, 2 Meriv. 30, 35; Howe v. Contencin, 1 Bro. Ch. R. 27, 29;. Ex parte Kendall, 17 Ves. 519, 520; Underhill v. Howard, 10 Ves. 209, 227; Hunt v. Rousmaniere, 8 Wheat. R. 212, 213; s. c. 1 Peters, Sup. C. R. 16; Weaver v. Shryork, 6 Serg. & R. 262, 264; Ex parte Symonds, 1 Cox, R. 200; Burn v. Burn, 3 Ves. 573, 583; Ex parte Bates & Henckill, 3 Ves. R. 400, note; Gray v. Chiswell, 9 Ves. 118.

2 Weaver v. Shryork, 6 Serg. & R. 262, 264; Gray v. Chiswell, 9 Ves. 118; Ex parte Kendall, 17 Ves. 525.

Thorpe v. Jackson, 2 Younge & Coll. 553; Wilkinson v. Henderson, 1 Mylne & Keen, 582. But see Richardson v. Horton, 6 Beav. R. 185.

Ibid. But in all such cases the surviving partners are properly to be made parties, as they have a right to contest the demand, and are interested in taking the account. Ibid.

5 See Hunt v. Rousmaniere, 8 Wheat. R. 212, 213, 214; s. c. 1 Peters, 16. See Richardson v. Horton, 6 Beav. R. 185.

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