a contract is being enforced at variance with the writing and to the disadvantage of one of the parties. The question ultimately resolves itself into this: how far may the court go in disregarding the Statute in order to prevent it from working injustice? It should be observed that the statute interposes no obstacle to rescission of the transaction by the court,82 and in any case where there is such part performance of a contract for the sale of land as to avoid the effect of the local statute,83 there is no more difficulty in reforming the written contract, than if the contract originally was not within the statute. Nor is there any doubt that if the defendant sets up the mistake in bar to a suit to enforce the contract as written, the court may refuse to enforce the contract except on the plaintiff's assent to modify the writing to correspond to the real agreement. 84

§ 1556. Voluntary or illegal writings.

It may be supposed that a voluntary conveyance or obligation under seal does not express the intention of the donor, either because it gives too much or gives too little. If it gives more than the donor intended, a court of equity will reform it though the donee knew nothing of the mistake.85 On the other

82 Davis v. Ely, 104 N. C. 16, 10 S. E. 138, 5 L. R.A.810, 17 Am. St. Rep. 667.

See supra, § 494.

4 M. Sigbert Awes Co. v. Haslam, 37 N. Dak. 122, 163 N. W. 265; and see supra, § 1425.

Lister v. Hodgson, L. R. 4. Eq. 30; Mitchell v. Mitchell, 40 Ga. 11; Andrews v. Andrews, 12 Ind. 348; Spencer v. Spencer, 115 Miss. 71, 75 So. 770; Day v. Day, 84 N. C. 408; Ferrell v. Ferrell, 53 W. Va. 515, 44 S. E. 187.

In Ellis v. Ellis, 26 T. L. Rep. 166, this principle was applied though the mistake seems to have been rather of law than of fact. A husband transferred securities of large value to his wife, intending them as a gift to her absolutely. When he made the gift he knew of his marriage settlement, but did not realize that the gift would

come within the operation of a clause therein under which his wife covenanted to settle all after-acquired property. It having been decided that the gift came within the operation of that clause, the husband brought this action for the purpose of obtaining a revocation of the gift upon the ground that it was made under a mistake of fact, it was held, that the gift being voluntary, and having been made under a mistake of fact, the husband was entitled to have it set aside.

In Hood v. Mackinnon, [1901] 1 Ch. 476, the mistake must certainly be considered negligent, but it was held that an appointment of part of a fund by deed poll, made in entire forgetfulness by the appointer of an earlier appointment of part of the fund to the same person, might be rescinded on the ground of mistake.

hand, if the instruments gave less than the donor intended, the donee can get no relief,86 unless there have been such improvements made by the grantee as to give the donee a special equity. These cases sufficiently show that in reforming instruments equity is not, as often said, restoring the real transaction and setting aside merely the apparent one. If the real transaction were what the parties to a contract or conveyance intended as distinguished from what they expressed, the same would be true in the case of gifts; and no different rules should be applied to volunteers from those applicable to parties who give value. In truth, the basis of the rule concerning volunteers, is simply that it is not just to let a gift stand which was greater than the donor intended, and, on the other hand, a volunteer who gave no consideration cannot ask for the enforcement of an intention which has remained purely executory. It is immaterial that a party against whom relief is asked received no consideration, if the complainant gave consideration. Therefore, equity will reform an instrument against sureties.87 If a writing was part of an illegal transaction equity will not reform it at the suit of a party to the illegality.88

1557. Rescission.

Where reformation is possible, it is generally the only remedy permissible, since the mistake of the parties related to their expression only, and to decree rescission and freedom from all bond would be an unnecessary violation of their intent. But where the error is in the substance of the bargain, not in its expression that is where the mistake relates to the way the

86 Jackson v. Wolfe, 127 Ark. 54, 191 S. W. 938; Peters v. Priest, 134 Ark. 161, 203 S. W. 1042; Fickes v. Baker, 36 Cal. App. 129, 171 Pac. 819; Shears v. Westover, 110 Mich. 505, 68 N: W. 266; Powell v. Morisey, 98 N. C. 426, 2 Am. St. Rep. 343; Hout v. Hout, 20 Oh. St. 119; Dennis v. Dennis, 4 Rich. Eq. 307; Willey v. Hodge, 104 Wis. 81, 80 N. W. 75, 76 Am. St. Rep. 852.

87 Olmsted v. Olmsted, 38 Conn. 309; United States v. Cushman, 2 Sumn. 426, Fed. Cas. No. 14,908; Keith v.

Henkleman 68 Ill. App. 623, affd. in 173 Ill. 137, 50 N. E. 692; State ex rel. Frank v. Frank, 51 Mo. 98; Smith v. Allen, 1 N. J. Eq. 43, 21 Am. Dec. 33; Prior v. Williams, 3 Abb. App. Dec. 624; Wiser v. Blachly, 1 Johns. Ch. 607; Butler v. Durham, 3 Ire. Eq. 589; Neininger v. State, 50 Ohio St. 394, 34 N. E. 633, 40 Am. St. Rep. 674.

88 Gilmore v. Thomas, 252 Mo. 147, 158 S. W. 577; Edwards v. Boyle, 37 Okl. 639, 133 Pac. 233.

agreed terms will apply to the external world, rescission with restitution of whatever has been parted with, is the only relief possible, though this may be sought in a variety of ways appropriate for different situations, namely:

1. If the agreement is in writing, by a direct proceeding in equity for rescission. Where a conveyance or even a contract relating to land has been made, this is the only satisfactory relief.

2. In case of any contract written or oral, one whose promise is still executory may promptly offer to return anything received by him, and if his offer is refused and he is sued for failure to perform his promise, may set up as a defence to an action at law or suit in equity the facts justifying rescission.

3. One who has paid money under a mistake justifying rescission may use in general assumpsit, or its modern local equivalent, on principles of quasi-contract for its recovery; and to a great degree similar redress is allowable for the recovery of the value of goods or services.

The character of mistake justifying relief should not differ, whatever tribunal or remedy may be appropriate to a particular case. The doctrines governing mistake have mainly, but not exclusively been developed in equity but at the present time the differences between the two jurisdictions on the subject tend to become confined to the propriety of a particular remedy and not to extend to the fundamental basis of right; though this result has not as yet been wholly achieved. Knowledge by one party that the other is under a mistake as to such a matter as would make the transaction voidable if the mistake were mutual, if accompanied by any circumstances deemed inequitable and perhaps generally without more, will have the same effect as mutual mistake in justifying rescission."

89 Griswold v. Hazard, 141 U. S. 260, 35 L. Ed. 678, 11 Sup. Ct. 972, 999; Wyche v. Green, 26 Ga. 415; Shelton v. Ellis, 70 Ga. 297; McCormick v. Miller, 102 III. 208, 40 Am. Rep. 577; Montgonery County v. American Emigrant Co., 47 Ia. 91; Freeman v. Croom, 172 N. C. 524, 90 S. E. 523; International L. Ins. Co. v. Stuart (Tex. Civ. App.), 201 S. W. 1088. See also

Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 12 Sup. Ct. Rep. 239, 35 L. Ed. 1063; Medical Society v. Gilbreth, 208 Fed. 899; Campbell v. Hatchett, 55 Ala. 548; Webb v. Hammond, 31 Ind. App. 613, 68 N. E. 916. How far silence under such circumstances is fraudulent is considered supra, §§ 1497-1499.

§ 1558. Mistake as to the person contracted with.

As has been seen, an offer can be accepted only by the person to whom it is addressed; 90 and a transaction, therefore, where the parties have not agreed to contract each with the other is void; but the fact that one or both of the parties are under a mutual mistake as to who the party is, with whom he is contracting, will not have this effect. In most of the cases where such circumstances have been shown, the mistake was induced by fraud; 91 but there seems no reason to doubt that not only where the mistake was induced by fraud, but also where there was a mutual mistake, without misrepresentation the transaction would be voidable. Whether a unilateral mistake of one party as to the identity of the person with whom he was dealing would justify avoidance of the contract, would logically depend on the general question whether unilateral mistake should justify rescission.92 As the jurisdiction of equity is confined to written contracts, and as a mistake of identity is not generally made in a written contract, any possible relief ordinarily must be given by a court of law.

An error in regard to person may occur not only with reference to parties to the contract but also with reference to other persons who may be referred to in it as a means of defining the thing to be done or the property to be transferred. In the latter case the mistake concerns the identity of the subject-matter of the contract.93

90 See supra, § 80.

91 The cases are collected, supra, § 1517.

92 See infra, §§ 1573 el seq. In Jones v. Chicago, B. & Q. R. Co., 102 Neb. 853, 170 N. W. 170, a flour company, having a contract to sell a quantity of flour to F at a price much below the existing market price by mistake had entered the contract on its books as one with the plaintiff, and therefore shipped the flour to him with a draft for the price, which he paid. seller discovering its mistake obtained redelivery of the flour from the carrier, the plaintiff in the meantime having obtained the bill of lading by paying

The

the draft. The Court sustained the seller's contention on the ground that there was no meeting of minds, and no contract. There seems reason to suppose that the plaintiff had good reason to guess from the amount of the draft and from the fact that he had ordered no flour, that a mistake had been made. If so the sale though not void would be voidable, and the decision correct. On any other assumption it is inconsistent with the views expressed in this treatise of the requisites for the formation of a contract and of the impropriety of allowing rescission for unilateral mistake.

93 Thus where a remainder (Colyer

§ 1559. Error in regard to an object to which the contract re

lates.

When the performance of a contract requires the existence of a specific thing, and at the time the contract is made the thing does not exist, it is obvious that completion of the transaction is impossible, and that the parties would not have entered into the agreement had they known the facts. Though the agreement is impossible of performance it does not, however, necessarily follow that the party who has in terms undertaken the performance which requires the existence of the thing in question, is not liable for failing to perform. It is necessary to distinguish cases where he takes the risk of his ability from cases where both parties assume the existence of the thing. In the latter case it is inequitable to charge the promisor. The situation is possible both where real estate and where personal property is the non-existing object.

§ 1560. Non-existence of goods sold.

The Uniform Sales Act 94 states the rule applicable to an attempted sale of non-existent goods.

Section 7.-[DESTRUCTION OF GOODS SOLD.] (1.) Where the parties purport to sell specific goods, and the goods without the knowledge of the seller have wholly perished at the time when the agreement is made, the agreement is void.

. Clay, 7 Beav. 188; Moehlenpah v. Mayhew, 138 Wis. 561, 119 N. W. 826. See also Fleetwood v. Brown, 109 Ind. 567, 9 N. E. 352, 11 N. E. 779), or annuity (Strickland v. Turner, 7 Ex. 208), or insurance policy (Scott v. Coulson, [1903] 2 Ch. 249; Riegel v. American Life Ins. Co., 140 Pa. 193, 21 Atl. 392, 11 L. R. A. 857, 23 Am. St. Rep. 225), is bargained for under a mutual mistake as to the existence of the life tenant or annuitant or person insured, the thing which the parties were bargaining for may fairly be said not to have existed. Other cases may easily be supposed where a mutual mistake as to the existence of a

person while not affecting the character of the promised performance would make the performance impossible,- e. g., a contract to paint a portrait of a third person who unknown to the parties to the contract is dead. In still other cases such a mistake would merely affect the value of the performance, e. g., a contract to buy and sell stock in a company of which the president, whose management largely contributed to the value of the stock, unknown to the parties, had died.

94 The States where this statute is in force are enumerated, supra, § 506.