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154. It is difficult to reconcile this doctrine with that rule of evidence at the common law which studiously excludes the admission of parol evidence to vary or control written contracts. The same principle lies at the foundation of each class of decisions, that is to say, the desire to suppress frauds and to promote general good faith and confidence in the formation of contracts. The danger of setting aside the solemn engagements of parties when reduced to writing, by the introduction of parol evidence substituting other material terms and stipulations, is sufficiently obvious.1 But what shall be said where those terms and stipulations are suppressed or omitted by fraud or imposition? Shall the guilty party be allowed to avail himself of such a triumph over innocence and credulity to accomplish his own base designs? That would be to allow a rule introduced to suppress fraud to be the most effectual promotion and encouragement of it. And hence Courts of Equity have not hesitated to entertain jurisdiction to reform all contracts where a fraudulent suppression, omission, or insertion of a material stipulation exists, notwithstanding to some extent it breaks in upon the uniformity of the rule as to the exclusion of parol evidence to vary or control contracts; wisely deeming such cases to be a proper exception to the rule, and proving its general soundness.2

155. It is upon the same ground that equity interferes in cases of written agreements where there has been an innocent omission or insertion of a material stipulation contrary to the intention of both parties and under a mutual mistake. To allow it to prevail

Clinan v. Cooke, 1 Sch. & Lefr. 32, &c. See Sugden on Vendors, pp. 146 to 159 (7th edit.); Andrews v. Essex F. & M. Insur. Co., 3 Mason, R. 10. 1 See Woolam v. Hearn, 7 Ves. 219.

2 Newl. Eq. Contr. ch. 19; 1 Eq. Abridg. 20, pl. 5; Filmer v. Gott, 4 Bro. Parl. Cas. 230; 1 Fonbl. Eq. B. 1, ch. 2, § 8; Id. ch. 3, § 4, and note (n); Irnham v. Child, 1 Bro. Ch. R. 92; Portmore v. Morris, 2 Bro. Ch. R. 219; 1 Eq. Abridg. 19; Id. 20, Agreements, B.; Hunt v. Rousmaniere, 8 Wheat. R. 211; s. c. 1 Peters, Sup. C. R. 13. In cases of this sort it is often said, that the admission of the parol evidence to establish fraud or circumvention is not so much to vary the contract as to establish something collateral to it, which shows that it ought not to be enforced. Davis v. Symonds, 1 Cox, R. 402, 404, 405. But in cases of mistake the party often seeks to enforce the contract after insisting upon its being reformed. See 3 Starkie on Evid. Pt. 4, pp. 1015, 1016, 1018; Pitcairne v. Ogbourne, 2 Ves. 375, 376; Baker v. Paine, 1 Ves. 456. See also Attorney-Gen. v. Sitwell, Younge & Coll. 559, 582, and the remarks of Mr. Baron Alderson against the admission of parol evidence in such cases. Post, § 161, p. 173, note 4.

in such a case would be to work a surprise, or fraud, upon both parties; and certainly upon the one who is the sufferer. As much injustice would to the full be done under such circumstances as would be done by a positive fraud or an inevitable accident.1 A Court of Equity would be of little value if it could suppress only positive frauds, and leave mutual mistakes, innocently made, to work intolerable mischiefs contrary to the intention of parties. It would be to allow an act originating in innocence to operate ultimately as a fraud, by enabling the party who receives the benefit of the mistake to resist the claims of justice under the shelter of a rule framed to promote it. In a practical view there would be as much mischief done by refusing relief in such cases as there would be introduced by allowing parol evidence in all cases to vary written contracts.

156. We must therefore treat the cases in which equity affords relief, and allows parol evidence to vary and reform written contracts and instruments upon the ground of accident and mistake, as properly forming, like cases of fraud, exceptions to the general rule which excludes parol evidence and as standing upon the same policy as the rule itself. If the mistake should be admitted by the other side, the court would certainly not overturn any rule of equity by varying the deed; but it would be an equity dehors the instrument. And if it should be proved by other evidence entirely satisfactory and equivalent to an admission, the reasons for relief would seem to be equally cogent and conclusive.5 It would be a great defect in the moral jurisdiction of the court if under such circumstances it were incapable of administering relief.6

1 Joynes v. Statham, 3 Atk. 388; Ramsbottom v. Colden, 1 Ves. & Beames, R. 168; 1 Fonbl. Eq. B. 1, ch. 2, § 8, note (z); Id. § 7, note (v).

2 Townshend v. Stangroom, 6 Ves. 336, 337; Gillespie v. Moon, 2 John. Ch. R. 596; Joynes v. Statham, 3 Atk. 385; 3 Starkie, Evid. Pt. 4, pp. 1018, 1019; Pitcairne v. Ogbourne, 2 Ves. R. 377, and South Sea Company v. D'Oliffe, there cited.

* Joynes v. Statham, 3 Atk. 388; Ramsbottom v. Golden, 1 Ves. & Beam. R. 168; 1 Fonbl. Eq. B. 1, ch. 2, § 11, note (o); Mitf. Eq. Pl. by Jeremy, 129; Clowes v. Higginson, 1 Ves. & Beam. R. 526, 527; Ball v. Storie, 1 Sim. & Stu. 210.

4 Davis v. Symonds, 1 Cox, R. 404, 405.

5 Irnham v. Child, 1 Bro. Ch. R. 92, 93.

• See Townshend v. Stangroom, 6 Ves. 336, 337; Gillespie v. Moon, 2 John. Ch. R. 596.

157. And this remark naturally conducts us back again to the qualification of the doctrine (already stated) which is insisted upon by Courts of Equity. Relief will be granted in cases of written instruments only where there is a plain mistake clearly made out by satisfactory proofs. It is true that this in one sense leaves the rule somewhat loose, as every court is still left free to say what is a plain mistake, and what are proper and satisfactory proofs. But this is an infirmity belonging to the administration of justice generally; for in many cases different judges will differ as to the result and weight of evidence, and consequently they may make different decisions upon the same evidence. But the qualification is most material, since it cannot fail to operate as a weighty caution upon the minds of all judges; (a) and it forbids relief whenever the evidence is loose, equivocal, or contradictory, or it is in its texture open to doubt or to opposing presumptions.3

158. Many of the cases included under this head have arisen under circumstances which brought them within the reach of the Statute of Frauds (as it is commonly called), which requires certain contracts to be in writing. But the rule as to rejecting parol evidence to contradict written agreements is by no means confined to such cases. It stands as a general rule of law independent of that statute. It is founded upon the ground that the written instrument furnishes better evidence of the delib

1 Gillespie v. Moon, 2 John. Ch. R. 595 to 597; Lyman v. United Insurance Company, 2 John. Ch. R. 630; Henkle v. Royal Assurance Company, 1 Ves. 317; Jeremy on Eq. Jurisd. Pt. 2, ch. 2, p. 368; Id. ch. 4, p. 490, 491; Townshend v. Stangroom, 6 Ves. 328, 339.

2 See Lord Eldon's Remarks in Townshend v. Stangroom, 6 Ves. 333, 334. 3 Lord Thurlow in one case said that the final evidence must be strong irrefragable evidence. Shelburne v. Inchiquin, 1 Bro. Ch. R. 347. If by this language his Lordship only meant that the mistake should be made out by evidence clear of all reasonable doubt, its accuracy need not be questioned. But if he meant that it should be in its nature or degree incapable of refutation, so as to be beyond any doubt and beyond controversy, the language is too general. See Attorney-General v. Sitwell, 1 Younge & Coll. 583.

4 Woolam v. Hearn, 7 Ves. 218; 1 Fonbl. Eq. B. 1, ch. 2, § 11, note (v) ; Clowes v. Higginson, 1 Ves. & Beames, R. 526; Pitcairne v. Ogbourne, 2 Ves. 375; Sugden on Vendors, ch. 3, § 3; Parteriche v. Powlet, 2 Atk. 383, 384; 3 Starkie on Evid. Pt. 4, tit. Parol Evid. pp. 995 to 1020; Davis v. Symonds, 1 Cox, R. 402, 404, 405.

(a) See Hall v. Claggett, 2 Md. Ch. 151, 153.

erate intention of the parties than any parol proof can supply.1 And the exceptions to the rule originating in accident and mistake have been equally applied to written instruments within and without the Statute of Frauds. (a) Thus for instance relief has been granted or refused according to circumstances in cases of asserted mistakes in policies of insurance (b) even after a loss has taken place. And in the same manner equity has interfered in other cases of contract, not only of a commercial nature but of any other nature.3

159. The relief granted by Courts of Equity in cases of this character is not confined to mere executory contracts by altering and conforming them to the real intent of the parties, but it is extended to solemn instruments which are made by the parties in pursuance of such executory or preliminary contracts. And indeed if the court acted otherwise there would be a great defect of justice, and the main evils of the mistake would remain irremediable. Hence in preliminary contracts for conveyances, settlements, and other solemn instruments the court acts efficiently by reforming the preliminary contract itself, and decreeing a due execution of it as reformed, if no conveyance or other solemn instrument in pursuance of it has been executed. And if such conveyance or instrument has been executed, it reforms the latter also by making it such as the parties originally intended.1

1 Ibid.

2 Motteux v. London Assur. Co., 1 Atk. 545; Henkle v. Royal Ex. Assur. Co., 1 Ves. 317; Lyman v. United Insur. Co., 2 John. Ch. R. 630; Head v. Boston Mar. Ins. Co., 2 Cranch, 419, 444; Marsh. Insur. B. 1, ch. 8, § 4; Id. Andrews v. Essex Fire and Mar. Ins. Co., 3 Mason, R. 10; Delaware Ins. Co. v. Hogan, 2 Wash. Cir. R. 5.

8 Baker v. Paine, 1 Ves. 456; Getman's Executors v. Beardsley, 2 John. Ch. R. 274; Simpson v. Vaughan, 2 Atk. 30; Bishop v. Church, 2 Ves. 100, 371; Thomas v. Frazer, 3 Ves. 399; Finley v. Lynn, 6 Cranch, 238; Mitf. Pl. Eq. by Jeremy, 129, 130; Pitcairne v. Ogbourne, 2 Ves. 375, and South Sea Company v. D'Oliffe, there cited, p. 377; 3 Starkie, Evid. Pt. 4, p. 1019; Underhill v. Harwood, 10 Ves. 225, 226; Edwin v. East India Company, 2 Vern. 210; Edwards v. Child, 2 Vern. 727.

4 See Newland on Contr. ch. 19, pp. 338 to 347; Mitf. Eq. Pl. by Jeremy,

(a) As to cases of land where the intention was to convey more than the deed covers, see Glass v. Hulbert, 102 Mass. 24. But see contra Hitchins v. Pettingill, 58 N. H. 386; ante, note to § 140, at p. 155.

(b) National Ins. Co. v. Crane, 16 Md. 260; Keith v. Globe Ins. Co., 52 Ill. 518; Oliver v. Mutual Ins. Co., 2 Curt. 277. See Mackenzie v. Coulson, L. R. 8 Eq. 368; Parker v. Benjamin, 53 Ill. 255.

160. There is less difficulty in reforming written instruments where the mistake is mainly or wholly made out by other preliminary written instruments or memoranda of the agreement. The danger of public mischief or private inconvenience is far less in such cases than it is in cases where parol evidence is admitted. And accordingly Courts of Equity interfere with far less scruple to correct mistakes in the former than mistakes in the latter. Thus marriage settlements are often reformed and varied so as to conform to the previous articles; and conveyances of real estate are in like manner controllable by the terms of the prior written contract.2 Memoranda of a less formal character are also admissible for the same purpose.3 But in all such cases it must be plainly made out that the parties meant in their final instruments merely to carry into effect the arrangements designated in the prior contract or articles. For as the parties are at liberty to vary the original agreement if the circumstances of the 128, 129, 130; Sugden on Vendors, pp. 146 to 159 (7th edit.); South Sea Company v. D'Oliffe, cited 2 Ves. 377; 2 Atk. 525; Henkle v. Royal Ex. Assurance Comp., 1 Ves. 417, 318; Baker v. Paine, 1 Ves. 456. But see Attorney-Gen. v. Sitwell, 1 Younge & Coll. 559, 582; Post, § 161.

1 Jeremy on Eq. Jurisd. Pt. 2, ch. 2, pp. 368, 369; ch. 4, § 5, pp. 490, 491; Durant v. Durant, 1 Cox, R. 58; Grounds and Rudim. of the Law, M. 113, p. 81 (edit. 1751); Toth. 229 [131].

2 The cases on this head are exceedingly numerous. Many of them will be found collected in Newland on Contr. ch. 19, p. 337; Com. Dig. Chancery, 3 Z. 11, 12; 1 Fonbl. Eq. B. 1, ch. 3, § 11, note (p); Id. ch. 6, § 7, and notes; 2 Bridg. Dig. Marriage, ii. p. 300; 1 Fonbl. Eq. B. 1, ch. 2, § 7, note (v); Chitty, Eq. Dig. Settlement on Marriage, ix.; Randall v. Randall, 2 P. Will. 464; Randall v. Willis, 5 Ves. 275; West v. Erissey, 2 P. Will. 349, and Mr. Cox's note (1), p. 355; Jeremy, Eq. Jurisd. Pt. 2, ch. 2, p. 378 to 382; 3 Starkie, Evid. tit. Parol Evid. 10, 19; Barstow v. Kilvington, 5 Ves. 592. In cases of marriage articles the court will frequently give a construction to the words more favorable to the presumed intent of the parties than it does in some other cases. Thus in marriage articles, if there be a limitation to the parents for life, with remainder to the heirs of their bodies, the latter words are in equity generally construed to be words of purchase; and accordingly the court will carry such articles into effect by way of a strict settlement. Newland on Contr. ch. 19, p. 337; Fearne on Conting. Rem. pp. 90 to 113 (7th edit. by Butler); 1 Fonbl. Eq. B. 1, ch. 3, § 11, note (p); Id. ch. 6, § 7, and notes, § 16, note (e); Randall v. Willis, 5 Ves. 275; West v. Erissey, 2 P. Will. 349; and Mr. Cox's note, ibid. (1); Heneage v. Hunloke, 2 Atk. 455, and Sanders's note, Id. 457 (1); Jeremy on Eq. Jurisd. Pt. 2, ch. 2, pp. 378 to 382; Taggart v. Taggart, 1 Sch. & Lef. 84; Blackburn v. Staples, 2 V. & Beam. 368, 369; Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 2, p. 377, 378, 379. 8 Motteux v. London Assurance Company, 1 Atk. R. 545; Baker v. Paine, 1 Ves. 456.

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