Sec 207

So far as concerns the character of proof required, rescission and reformation are to be carefully distinguished. Rescission will be granted on proof of unilateral mistake.4 Though it is open to a party in cases of bilateral mistake going to the essence of the bargain to apply for rescission, yet to sustain a decree for a rescission, it is sufficient to prove that the party complaining was bona fide and non-negli-gently mistaken on a matter so essential that the two parties in making the bargain cannot be said to have had the same thing in mind. There can be no rectification, however, unless it is proved that both parties were mistaken in the use of the terms to be corrected, and that both parties agreed to the contract sought to be substituted for that to be set -aside. In each term of the contract to be thus set up, it must be proved that the parties concurred. To a contract,1 concurrence of minds is essential, and no substitution of an amended contract can be made without showing that the parties concurred in the amended contract. This is what is meant by the expression frequently used, that to justify a decree of rectification concurrent mistake, or mistake of both parties, must be proved. On proof of mistake by one party, rescission may be decreed. But rectification will not be decreed without proving that both parties had originally agreed to the terms inserted, and that the mistake was bilateral.2 "The court cannot correct an instrument except upon a clear mistake common to all."3

Rescission granted on proof of unilateral mistake; for rectification mistake must be bilateral.

1 Blackburn v. Randolph, 33 Ark. 119.

2 Welles v. Yates, 44 N. Y. 525.

3 Hearn v. Ins. Co., 4 Cliff. 192; Brugger v. Ins. Co., 5 Saw. 304; Hay v. Ins. Co., 77 N. Y. 235 ; see Dean v. Ins. Co., 4 Cliff. 575.-" It may happen that there does exist a common intention, which, however, is founded on an assumption made by both parties, as to some matter of fact essential to the agreement. In this case the common intention must stand or fall with the assumption on which it is founded. If that assumption is wrong, the intention of the parties is from the outset incapable of taking effect. But for their common error it would never have been formed, and it is treated as nonexistent. Here there is in some sense an agreement; but it is nullified in its inception by the nullity of the thing agreed upon. And it seems hardly too artificial to say that there is no real agreement." . . . "In the latter class of cases the error must be common to both parties." Pollock, Wald's ed. 400.

In England, since the recent judicature act, "the parties to any proceedings in the courts thereby established, are entitled to the administration of equitable relief; and all the divisions and judges of the court are required to give every equitable ground of relief the same effect as ought to have been given by the courts of chancery. Only all causes for the rectification, or setting aside, or cancellation of deeds or other written instruments are assigned (subject as aforesaid) to the chancery division of the court." Leake, 2d ed. 320.

4 See infra, sec 282.

1 Supra, sec 4.

2 Story, Eq. Jur. 12th ed., sec 138 etseq.

3 Leake, 2d ed. 315, 326, citing Sells v. Sells, 1 Dr. & S. 42; Bentley v. Mackay, 31 Beav. 143 ; Ionides v. Ins. Co. L. R. 6 Q. B. 674. In the latter case, the plaintiff, intending to insure goods by one ship, by mistake insured them as if on board another ship of the same name, there being no specific identification of the goods. It was held that the insurer was not bound in respect to the goods intended to be insured, but not actually insured, though had they been otherwise sufficiently individualized, a misnomer of the ship would have been immaterial. In Mackenzie v. Coulson, L. R. 8 Eq. 368, rectification was also refused of an insurance policy on proof of a mere unilateral mistake ; Leake, 2d ed. 323. In Boulter in re, L. R. 4 C. D. 241, the court, under proceeding in bankruptcy, held that a memorandum of mortgage in which the property was incorrectly described could be treated as if rectified so that the security could operate as intended. To the same effect, see Ind's case, L. R. 7 Ch. 485 ; Empson's case, L. R. 9 Eq. 597; Sala-man v. Glover, L. R. 20 Eq. 444; Bur-chell v. Clark, L. R. 2 C. P. D. 88 ; Smith v. Iliffe, L. R. 20 Eq. 666 ; Cf. 1 White & T. L. C. 3d ed. 36 ; Sawyer v. Hovey, 3 Allen, 331; Canedy v. Marcy, 13 Gray, 373; Nevius v. Dunlap, 33 N. Y. 676 ; Bryce v. Ins. Co., 55 N. Y. 240; Schettinger v. Hopple, 3 Grant Ca. 54; Renshaw v. Lef-ferman, 51 Md. 277 ; Hunter v. Bilyea, 30 111. 228 ; Shay v. Pettes, 35 111. 360 ; Nelson v. Davis, 40 Ind. 366. That rectification cannot be granted on a mistake of only one party, see Alvan-ley v. Kinnaird, 2 Mac. & G. 1; Swais-land v. Dearsley, 29 Beav. 430 ; Bast v. Bank, 101 U. S. 93 ; Tilley v. Cook, 103 U. S. 155 ; Brown v. Lamphear, 35 Vt. 252; Andrews v. Ins. Co., 3 Mason, 10 ; Stockbridge Co. v. Hudson Co., 102 Mass. 48; Nevius v. Dunlap, 33 N. Y. 676 ; Durant v. Bacot, 13 N. J. Eq. 201; McMillan v. Fish, 29 N. J. Eq. 610; Ramsey v. Smith, 32 N. J. Eq. 28;.