The province of reformation is to make a writing express the bargain which the parties desired to put in writing. Agreements of which they did not desire written expression will not be put into writing by decree of the court. Therefore, if parties intentionally make an oral agreement which is unenforceable for the reason that it is not in writing, the court cannot order a writing executed even though the parties erroneously supposed .that their oral bargain was legally valid. Similarly, if the parties to a written instrument understand that part of their previous agreement has been omitted from the writing and rely on oral agreement with one another to vary or add in certain respects to the written agreement, whether they rely on moral obligation or believe that such a variation or addition is legally valid, equity cannot reform the writing by the insertion of the oral agreement.6* Still more clearly if, because
54 See Lavw v. Dennett, 100 U. S. 90, 27 L. Ed. 867, 3 Sup. Ct. 73.
55 Thus in Abbott v. Dow, 133 Wis. 633, 113 N. W. 960, the parties intending to convey lot 1, described, by a clerical error in their written contract, lot 2. Before discovery of the mistake, lot 1 was conveyed by the defendant, without fault on his part, to a purchaser for value without notice. The plaintiff was allowed rescission though the court said that except for the intervening rights of a third person, reformation would have been the proper remedy. See also Jeakins v. Fraasier, 64 Kans. 267, 67 Pac.854.
In Brickey v. Linnerts, 241 111. 187, 89 N. E. 342, a deed purported to convey land which the parties did not intend should be conveyed and which the grantor did not own; but the grantor also did not own the land which the parties intended to be conveyed. The court rescinded the contract. See also Macey v. Furman, 90 Wash. 580, 156 Pac. 548.
56 Betta v. Gunn, 31 Ala. 219; Holland Blow Stove Co. v. Barclay, 193 Ala. 200, 69 So. 118, L. R. A. 1915 D. 941; Ligon's Adm. v. Rogers, 12 Ga. 281; Richardson v. Perrin, 137 Ga. 432, 436, 73 S. E. 649; Andrew v. Spurr, 8 Allen, 412; Brintnall v. Briggs, 87 la. 538, 54 N. W. 531; Mighffl v. Rowley, 224 Mass. 586, 113 N. E. 569; Henderson v. Stokes, 42 N. J. Eq. 586, 8 Atl. 718; Trotter d. Brevoort, 60 N. Y. App. D. 562, 69 N. Y. S. 1028; (cf. Steinbach v. Prudential Ins. Co., 62 N. Y. App. D. 133, 70 N. Y. 8.809,172 N. Y. 471, 65 N. E. 281); Shenandoah Valley R. Co. v. Dunlop, 86 Va. 346, 10 S. E. 239; of mistake as to an antecedent or existing situation, the parties make a written instrument which they might not have made, except for the mistake, the court cannot reform the writing into one which it thinks they would have made, but in fact never agreed to make.57
If, however, the mistake is of sufficient importance and the status quo can be restored, equity should rescind the whole transaction, unless the mistake is one of law and the court feels constrained by that circumstance; and though a direct decree of reformation could not be granted, it would be proper to make the decree of rescission conditional on the refusal of the defendant to assent to reformation.
Braun v. Wisconsin Rendering Co., 92 Wis. 245, 66 N. W. 196; Pullen's Will, 166 Wis. 254, 165 N. W. 25.
In Hughes v. Payne, 27 So. Dak. 214, 217, 130 N. W. 81, the court said: "In a bill to reform a contract an allegation that, 'It was never conceived by either of the parties that it was necessary to reduce all of said contract to writing in order to make the same binding between the parties thereto,' negatives any theory of accidental omission, and does not present a cause for equitable relief. Clark v. Hart, 57 Ala. 390; Stodalka v. Novotny, 144 111. 125, 33 N. £. 534; Roundy v. Kent, 75 Iowa, 662, 37 N. W. 146; Andrew v. Spurr, 8 Allen, 412; Wise 9. Brooks, 69 Miss. 891, 13 So. 836; Grieve v. Grieve, 15 Wyo. 358, 89 Pac. 569, 9 L. R. A. (N. S.) 1211."
In Meacham Con. Co. v. Hopkins-ville, 164 Ky. 703, 707, 176 S. W. 187, the court said: "The authorities dealing with this question are not harmonious, some of them holding that when parties have deliberately entered into a written contract, with a full and clear understanding of its meaning and effect, neither of them will be allowed to say that the writing did not express their real intention or be permitted to vary or contradict its terms and conditions by evidence of prior or simultaneous verbal agreements or arrangements. Others hold that although the meaning and effect of the writing may have been fully understood, one of the parties, upon clear and convincing evidence of a prior or present agreement that the terms and conditions as expressed in the writing should not be enforced or would not be binding may have it reformed to express the true intention and agreement of the parties at the time of its execution.
"This latter view was adopted by this court in the early case of Coger's Executors v. McGee, 2 Bibb, 321, 5 Am. Dec. 610."
" Other illustrative cases on the subject are Ware v. Cowles, 24 Ala. 446, 60 Am. Dec. 482; Stevens v. Cooper, 1 Johns. Ch. 425, 7 Am. Dec. 499; Rearich v. Swinehart, 11 Penn. St. 233, 51 Am. Dec. 540; Dwight v. Pomeroy,
17 Mass. 303, 9 Am. Deo. 148; Oliver v. Oliver, 4 Rawle, 141, 26 Am. Dec. 123; McElderry v. Shipley, 2 Md. 25, 56 Am. Deo. 703; Martin v. Hamlin,
18 Mich. 354, 100 Am. Dec. 181. See also Pomeroy's Equity Jurisprudence, Vol. 2, Sec. 854.
" If this were a private case between private individuals involving private rights, we would follow the rule laid down in Coger v. McGee, but we do not think the equitable principle announced in that case should be allowed to control this one. The mayor of the city was empowered by the council to execute this contract, and it does not appear that the council at any time consented or agreed that the contract as written should be construed otherwise than according to its terms."
17 See the preceding section.