In Equity

In the application of equitable remedies, the granting or refusal of specific performance, the reformation of documents, or their rescission and cancellation, extrinsic evidence is much more freely admitted than at law. For instance, though, as we have seen, a man is ordinarily bound by the terms of an offer unequivocally expressed, and accepted in good faith, evidence has been admitted to show that the offer was made by inadvertence. Thus, where a person, immediately after dispatching an offer to sell several plots of land for a round sum, discovered that by a mistake in adding up the prices of the plots he had offered them for less than he intended, and informed the other party of the mistake without delay, but not before the latter had concluded the contract by acceptance, the court allowed the mistake to be shown, and refused specific performance, leaving the person to whom the offer was made to such remedy by way of damages as he could obtain in the common-law courts.60

Again, where a parol contract has been reduced to writing, or where a contract for a sale or lease of lands has been performed by the execution of a lease or conveyance, evidence may be admitted to show that a term of the contract is not the real agreement of the parties; and this is done for two purposes, and under two sets of circumstances.

Where a contract has been reduced to writing, or a deed executed, in pursuance of a previous agreement, and the writing or deed, owing to mutual mistake, fails to express the intention of the parties, a court of equity will rectify or reform the written instrument in accordance with their true intent; and this may be done even though the parties cannot be placed in the position they occupied when the contract was made.*1 In such cases, extrinsic, and, if necessary, parol evidence will be admited to show the true intent of the parties. There must have been a genuine agreement;02 its terms must have been expressed under mutual mistake;63 and the evidence must be clear and convincing.

59 Blackett v. Assurance Co., 2 Cromp. & J. 244; Brown v. Foster, 113 Mass. 13G, 18 Am. Rep. 463; Randolph v. Halden, 44 Iowa, 327; Greenstine v. Borchard, 50 Mich. 434, 15 N. W. 540, 45 Am. Rep. 51; Seavey v. Shurick, 110 Ind. 494, 11 N. E. 597; Wolff v. Campbell, 110 Mo. .114, 19 S. W. 622; O'Donohue v. Leggett, 134 N. Y. 40, 31 N. E. 269; Baltimore Baseball Club & Exhibition Co. v. Pickett, 78 Md. 375, 28 Atl. 279, 22 L. R. A. 690, 44 Am. St. Rep. 304; Holloway v. McNear, 81 Cal. 154, 22 Pac. 514; Gilbert v. Mc-Ginnis, 114 111. 28, 28 N. E. 382; Barnard v. Kellogg, 10 Wall. 383, 19 L. Ed. 987; Partridge v. Insurance Co., 15 Wall. 573, 21 L. Ed. 229; Globe Milling Co. v. Elevator Co., 44 Minn. 153, 46 N. W. 306; Menage v. Rosenthal, 175 Mass. 358, 56 N. E. 579. See "Customs and Usages," Dec. Dig. (Key-No.) §§ 14, 17; Cent. Dig. §§ 29, 34

60 Webster v. Cecil, 30 Beav. 62. See McCusker v. Spier, 72 Conn. 628, 45 Atl. 1011. See "Specific Performance," Dec. Dig. (Key-No.) § 52; Cent. Dig. §§ 155-159.

Where the mistake was not mutual, extrinsic evidence is only admitted in certain cases which appear to be regarded as having something of the character of fraud,64 and is admitted for the purpose of offering to the party seeking to profit by the mistake an option of abiding by a corrected contract, or having the contract annulled. Instances of such cases are where the mistake of one party was caused by the other, though not with any fraudulent intent, and was known to him before his position had been affected by. the con-'tract.65 In these cases it is probable that the court will not reform or correct the instrument unless the parties can be placed in statu quo.