Revision to conform to the intent of the parties. Revision to conform to original agreement. Presumption as to intent of parties. Revision of writings. Relief from effects of ARTICLE IV. REVISION OF CONTRACTS. SECTION 1524. Revision to conform to the intent of the parties. 1526. Presumption as to intent of parties. 1527. Revision of writings. 1528. Relief from effects of non-performance. § 1524. Whenever a contract is the result of fraud, accident or mistake, as defined by the title on CONTRACTS, the court may amend, add to, qualify, or vary it so as to make it just, reasonable and fit to be enforced.' And a contract cannot be revised when thereby the rights of any third person would be injuriously affected." § 1525. Where an instrument executed is intended to embody an agreement previously entered into, but the instrument, by mistake of the draftsman either as to law or fact, does not fulfil the intention of the parties, the court may revise the instrument so as to make it conform to the intention of the parties. Hunt v. Rousmaniere, 2 Mass., 342; 8 Wheat., 174; 3 § 1526. For the purposes of the revision of contracts, it must be presumed that all the parties to any contract intended to make an equitable and conscientious agreement. Sto. Eq. Jur., § 162; Demarest v. Wynkoop, 3 Johns. § 1527. In revising written instruments, the court cannot inquire what the instruments were intended to mean, or what were intended to be their legal consequences; but must confine itself to the inquiry what the instruments were intended to be. Story Eq., § 168; Adams' Eq., 170, Leavitt v. Palmer, 3 N. Y., 19. § 1528. Whenever, under the terms of a contract, a loss non-per- to one party would occur on his failure to perform, to the formance. exact letter, his part of such contract, and he is prevented, by accident, mistake, illness, or the fraud of the other party, from so performing it, he may be relieved from such loss on offering to the other party a full indemnity, unless such relief would violate an equal or stronger equity of such other party. Skinner v. Dayton, 2 Johns. Ch., 526; De Forest v. Bates, 1 Edw. Ch., 394; Skinner v. White, 17 Johns., 357; relief may § 1529. Whenever relief would be granted as between To whom the original parties to a contract in writing, the same relief be granted. may be granted as between those claiming under them,' except as against purchasers in good faith and without notice.' SECTION 1530. When rescission may be adjudged. 1531. Rescission for mistake. 1532. Court may require party rescinding to do equity. 1534. Instrument incompletely executed. § 1530. The rescission of a contract may be adjudged When rewhenever, by any provision of law, it is: 1. Void, for causes not appearing in the instrument itself, and the instrument itself is presumptive evidence against the existence of such causes or obstructs the party in the exercise of some right; 2. Voidable, by the party seeking such relief; 3. When the subject of the contract has no existence;' 4. When, in the case of a transfer, or an agreement for a transfer or lien, there is a total failure of title;" 5. When the contract is in fraud of the rights of the person seeking the relief, though he was not a party thereto; or tends to violate private or public confidence, or to impair the public interests. 'Story Eq. Jur., §§ 143, 144. scission may be adjudged. Rescission for mistake. Court may require party rescinding to do equity Cloud on title. Instrument incomplete § 1531. Rescission cannot be adjudged for mere mistake, unless the parties can be restored to their position as if the contract had not been made,' nor for any mistake which was not mutual, unless it was the result of fraud.' 1 Skinner v. White, 17 Johns., 357. 2 Story Eq. Jur., § 141. § 1532. On adjudging the rescission of a contract, except for usury', the court may require the party to whom such relief is granted to make any compensation to the other which justice may require. 1 See § 781. § 1533. Any instrument in writing affecting property or personal rights, whether a contract or otherwise, which is void for causes which do not appear in the instrument, and when the instrument is presumptive evidence against the existence of such causes, may be adjudged void and ordered to be delivered up or canceled, on the application of the party injured thereby.' 1 Hamilton v. Cummings, 1 Johns. Ch., 520-524; Van § 1534. In case of the incomplete execution of an instruly executed. ment, whether by the neglect to execute it of some of the parties who were intended to be bound thereby, or otherwise, those who have executed it may have it adjudged void and ordered to be canceled if upon its face it could bind them. Story Eq. Jur., § 169 a. Presumptive relief, what. CHAPTER III. PREVENTIVE RELIEF. SECTION 1535. Preventive relief, what. 1536. Injunction, when granted. 1537. Injunction, when not granted. 1535. Preventive relief is the interference of the law in civil matters, to prevent the doing of that which ought not to be done. It is granted by injunction provisional or final. Dederick v. Hoysradt, 4 How. Pr., 350. when grant 1536. An injunction may be granted to prevent the Injunction, doing of anything inequitable and hurtful, whenever the ed. injury therefrom would be irreparable, or compensation in damages would for any reason be inadequate;' to avoid a multiplicity of actions by or against the plaintiff;' to prevent the doing of anything which would be a fraud upon,' or detrimental to, the public or any class or body thereof; to restrain the wrongful acts of public officers and servants to the detriment of individuals, when the written proceedings on which such acts are founded are not void on their face, and to secure to the persons entitled thereto any statute privilege or franchise; to restrain nuisances; and to prevent the unlawful use of trade-marks. Nuisance is intended to be covered by this and the next. Acts of public officers and corporations concerning pub- Heywood v. Buffalo, 14 N. Y., 534. • Croton Turnpike v. Ryder, 1 Johns. Ch., 611; Thompson when not § 1537. No injunction can in any case be granted for the Injunction, purpose of protecting a right merely nominal;' nor against granted. persons not parties to the action; nor where the filing of a notice of action pending would be a sufficient protection;' nor to restrain the violation of any penal law, or of any. ordinance of a municipal corporation, not amounting to a nuisance; nor to restrain the violation of any patent or copyright granted by the United States; nor to restrain the violation of any agreement of which, from the nature of the subject, specific performance would not be adjudged;" nor to protect any doubtful right,' except in urgent cases, where delay would be ruinous; nor to prevent the execution of any statute of this state, nor the exercise of any public office; nor in any case when the damage caused by such injunction would be greater than any damage which could occur from not granting it.' 1 Wetmore v. Story, 3 Abb. Pr., 262. 'Fellows v. Fellows, 4 Johns. Ch., 25; Chase v. Chase, 1 Paige, 198; Waller v. Harris, 7 id., 167. 'Waddell v. Brune, 4 Edw., 671; Osborn v. Taylor, 5 Paige, 515. • Mayor of Hudson v. Thorne, 7 Paige, 261; Brandreth v. Lance, 8 id., 24. Parsons v. Barnard, 7 Johns., 144. Eden on Inj., 224; Newbery v. James, 2 Meriv., 446; 'Snowden v. Noah, Hopk., 347; Steamboat Co. v. Liv. Kerlin v. West, 3 Green (N. J.), 448. Fallatin v. Oriental Bank, 16 How. Pr., 253; Grey v. |