agreement, and that evidence was not admissible on the part of the defendant to show that the word "and" was inserted by mistake, and that the agreement really intended to be made was for work in houses "in South Street, Southampton Street" (a). A policy of insurance was made on the profits of a cargo to be carried by a particular ship "beginning the adventure from the loading on board the ship; " the plaintiff was not permitted to vary the terms of the policy by a correspondence, showing that the contract was intended to include an insurance against the profits being lost by reason of a loss of the ship during her voyage to the port of loading, although the premium was at a higher rate than would have been charged for an insurance not covering such risk (b).

Where the mistake in a written agreement is so obvious on the face of it as to leave no doubt of the intention of the parties without the assistance of external evidence, the contract is construed according to the obvious intention of the parties. Accordingly, where it was manifest on the face of an instrument that one name had been written by mistake for another, the Court read the instrument with the mistake corrected (c). So, where in a bond the condition was written that it should be void if the obligor did "not" pay a sum of money, the Court recognized the "not" as inserted by mistake, and read the bond without it (7).

A bond stated that the obligor became bound in 7700, without adding any denomination, but the condition showed that the bond was given to secure the payment of certain sums of money, reckoned in pounds sterling, in manner therein mentioned; the Court held that the intention sufficiently appeared from the whole bond, that the obligor should become bound in 7700 pounds sterling, and that the word "pounds " might be supplied (e). So the word "month" in a written agreement, which primâ facie means lunar month, has been construed by the context as meaning calendar month (f).

(a) Hitchin v. Groom, 5 C. B. 515. (b) Halhead v. Young, 6 E. & B. 312; 25 L. J. Q. B. 290.

(c) Wilson v. Wilson, 23 L. J. C.

697.

(d) Case cited by Lord St. Leonards, 23 L. J. C. 697, 703.

(e) Coles v. Hulme, 8 B. & C. 568. (f) Lang v. Gale, 1 M. & S. 111; R. v. Chawton, 1 Q. B. 247.

Rules of

Equity as

to agree

ments con

taining a mistake.

A bill of exchange was headed with the figures £245 and was drawn upon a stamp sufficient for that amount, but was expressed in words in the body of the bill to be drawn for two hundred pounds; it was held to be a bill for £200, and evidence was not admitted to show that it was intended to be for £245 and that the words "and forty-five" were omitted by mistake (a). An agreement dated 24 October referred to a bill of exchange "payable at three months from this date," and it appeared there was a bill of exchange dated 25 October and agreeing in all other respects with the description of the bill referred to in the agreement; it was held that the bill was sufficiently identified in the agreement (b).

Where the parties themselves subsequently alter the agreement so as to make it conform with their original intention, extrinsic evidence is admissible to explain the alteration and to show that the agreement as originally framed did not accord with the real agreement (c).

The strict rule of law is largely tempered by the doctrines and practice of the Courts of Equity; for a Court of Equity will not enforce a contract which has been drawn up by mistake in terms not in conformity with the real agreement of the parties; and will in some cases reform or set aside the mistaken agreement.

The defence that the contract sought to be enforced is not in conformity with the real agreement, but has been drawn up incorrectly by mistake, may be set up in answer to a bill for specific performance (d). In such case, if the plaintiff will not accept specific performance with the variation in the agreement set up and proved by the defendant, his bill is dismissed; but if he is willing to adopt the variation, he may have a decree (e); and specific performance of the agree

(a) Saunderson v. Piper, 5 Bing. N. C. 425.

(b) Way v. Hearne, 13 C. B. N. S. 292; 32 L. J. C. P. 34.

(e) See post, Chap. IV, Sect. II, "Alteration of Written Instrument."

(d) Joynes v. Statham, 3 Atk. 388; Garrard v. Gripling, 2 Swanst. 244;

Lord Gordon v. Marquis of Hertford, 2 Madd. 106.

(e) Clark v. Grant, 14 Ves. 519; Ramsbottom v. Gosden, 1 V. & B. 165; London and Birmingham Ry. Co. v. Winter, Cr. & Ph. 57; Martin v. Pycroft, 2 De G. M. & G. 785; 22 L. J. C. 94.

ment with the variations proved, may be decreed at the instance of the defendant without a cross bill (a).

Upon sufficient proof of the mistake and of the agreement really made, a Court of Equity exercises a jurisdiction to rectify the contract, and to enforce it in its corrected state (b). In the exercise of this jurisdiction a Court of Equity necessarily receives evidence of the real agreement in variation of the terms of the written agreement (c).

"In the ordinary case of rectifying mistakes in an instrument where it is sought to alter the instrument in any prescribed or definite mode, the mistake must be the concurrent mistake of all the parties. In such cases it is necessary to prove not only that there has been a mistake in what has been done, but also what was intended to be done, in order that the instrument may be set right according to what wa really so intended; for in such a case, if the parties took different views of what was intended, there would be no contract between them which could be carried into effect by rectifying the instrument" (d).

Where a document has been signed as an agreement in a common mistake as to its contents, and it appears that no real agreement was come to between the parties according to which it might be rectified, the Court will set it aside (e). An agreement for a lease was drawn up and signed stating two different sums for the rent in different parts of the agreement, the larger sum being that previously settled and intended to be inserted; afterwards the lease was drawn up as agreed, but stated the smaller sum as the rent, and was executed by the lessor in ignorance of the mistake, and by the lessee with knowledge of it; it was held that the lease could not be rectified against the lessee, because the agreement for the lease contained contradictory statements, as to the amount of the rent, but that the lessee should have an

(a) Fife v. Clayton, 13 Ves. 546. (b) See Henkle v. Royal Exchange Ass. Co., 1 Ves. Sen. 317; Baker v. Paine, 1 Ves. Sen. 456; Motteux v. London Ass. Co., 1 Atk. 515.

(c) Ball v. Storie, 1 Sim. & Stu. 210, 219.

(d) Per Turner, L. J., Bentley v.

Mackay, 31 L. J. C. 697, 709; per Romilly, M. R., Murray v. Parker, 19 Beav. 305, 308.

(e) Ib.; Calverley v. Williams, 1 Ves. Jun. 210; Price v. Ley, 32 L. J. C. 530; Fowler v. Scottish Life Ass. Co., 28 L. J. C. 225.

Mistake of

in matter

inducing

the agree

option to take a corrected lease, or to give up the one executed, paying for the use and occupation of the premises up to that time at the higher rent (a).

Where the contract is within the Statute of Frauds, the real agreement cannot, in general, be proved without satisfying the requirements of that statute (b); but it has been held to be no objection to a claim for specific performance of a written contract, that a provision was verbally agreed to which was not inserted in the writing, if the plaintiff will consent to the performance of the omitted term (c).

Where the agreement is induced by a mistake common to both parties both parties, without which mistake the agreement would not have been made, the question arises whether the agreement is made absolutely, or only conditionally upon and with reference to the state of circumstances supposed by mistake, so that upon the real state of circumstances the agreement is inoperative and void.

ment.

A contract was made for the sale of a cargo, then supposed to be on board a ship on its voyage, but which, unknown to both parties, had ceased to exist at the time of the sale; it was held that the contract imported the condition that the cargo was in existence, and that, this not being the case, the contract was void, and the vendor could not recover the price from the purchaser (d). A contract of sale of an annuity during the life of a person was held to be conditional upon the annuitant being alive at the time of the sale; so that, he having previously died and the purchase money having been paid in ignorance of that fact, it was held that the sale was void, and that the purchaser was entitled to recover back his money (e). A policy of insurance was renewed during the days of grace allowed after the expiration of the policy by the payment and acceptance of the premium, both parties being ignorant that the life insured had previously died

(a) Garrard v. Frankel, 30 Beav. 445; 31 L. J. C. 604.

(b) See Att. Gen. v. Sitwell, 1 You. & Coll. Ex. 559, 583; Rich v. Jackson, 4 Bro. C. C. 514; 6 Ves. 334 (37); Woollam v. Hearn, 7 Ves. 211.

(c) Martin v. Pycroft, 2 De G. M.

& G. 785; 22 L. J. C. 94; and see Fry on Specific Performance, § 519535+

(d) Couturier v. Hastie, 9 Ex. 102; 5 H. L. C. 673; 25 L. J. Ex. 253. (e) Strickland v. Turner, 7 Ex. 208.

during the days of grace; it was held that the renewal, being conditional upon the insured being then alive, was void (a), and that the insurer might recover back the premium as having been paid under a mistake of fact (b).

An agreement was made for the sale of a remainder in fee expectant on an estate tail, and an absolute bond was given to secure the purchase money; at the time of the sale the tenant in tail had suffered a recovery and destroyed the remainder, of which both parties were ignorant; a Court of Equity held the agreement void and cancelled the bond, upon the ground that the parties had contracted upon the supposition that a recovery had not then been suffered (c). An agreement was made between the assignee of the tenant for life of an estate and the person entitled in remainder respecting the timber on the estate, under the supposition that the tenant for life was then alive and entitled to cut the timber, but in fact he was then dead; it was held that the agreement was void both in equity and at law ().

The plaintiff contracted with the defendant for the purchase of an estate, which was supposed by both the parties, and was described in the agreement to contain 21,750 acres, but in fact contained only 11,814; it was held that the contract could not be enforced on either side (e). So, where a contract was made for the sale of a manor described as embracing a particular parish, and supposed by both parties to do so, and it was subsequently discovered that it included waste lands beyond the parish which neither party contemplated to be within the subject of the purchase, the Court held that the contract could not be enforced in a manner to include those lands (ƒ). So, an agreement for the sale of shares in a company, made in ignorance that a petition for winding up the company had been presented, was held not to be enforceable, so as to make the purchaser a contributory (g).

(a) Pritchard v. Merchants Life Insurance Soc. 3 C. B. N. S. 622; 27 L. J. C. P. 169.

(b) Per Byles, J., ib.

(c) Hitchcock v. Giddings, 4 Price,

135.

(d) Cochrane v. Willis, 35 L. J. C. 36; L. R. 1 Ch. Ap. 58.

(e) Earl of Durham v. Legard, 34 L. J. C. 589; and see Price v. North, 2 You. & Col. Ex. 620; Davis v. Shepherd, L. R. 1 Ch. Ap. 410. (f) Baxendale v. Seale, 19 Beav. 601.

(g) Emmerson's case, L. R. 1 Ch. Ap. 433.

N