The right of reformation wherever allowed is necessarily an invasion or limitation of the parol evidence rule, since when equity reforms a writing it enforces an oral agreement at variance with the writing which the parties had agreed upon as a memorial of their bargain. This limitation is necessary to work justice, and there seems no more reason to object to it in case of reformation than in case of rescission for fraud or for mistake. In either case, unless the mistake precludes the existence of a contract at law,63 it should not be denied that the writing correctly states the actual contract or conveyance which has been made, but as it is inequitable to allow the enforcement of it, and (where reformation is appropriate) as justice requires the substitution of another in its place, equity gives relief; and to that end necessarily admits any relevant parol evidence.

and of Nelson v. Minneapolis Railway Co., 61 Minn. 167, 63 N. W. 486. And it is in cases of like effect that it is held honesty in representing what is in fact untrue is no reason for not setting aside a settlement made because of mutual mistake. See Pendarvis v. Gray, 41 Tex. 326; First Nat. Bank v. Hackett, 150 Wis. 113, 149 N. W. 703; Tatman v. Railway (Del. Ch.), 85 Atl. 716, 721; Culbertson v. Blanchard, 79 Tex. 486, 15 S. W. 700; Houston & T. G. R. Go. v. Brown (Tex. Civ. App.), 69 S. W. 651; Berry v. Insurance Co., 132 N. Y. 49, 30 N. E. 254, 28 Am. St. Rep. 548. It is said in the Tatman Gase that in order to invalidate a release on account of mutual mistake, the mistake must relate to a past or present fact material to the controversy, and not to an opinion respecting future conditions or results of present facts. It cites Chicago & N. W. Railway v. Wilcox, 116 Fed. 913, 54 C. C. A. 147; Nelson v. Chicago & N. W. Railway, 111 Minn. 193,126 N. W. 902; Houston v. Brown (Tex. Civ. App.), 69 S. W. 651; Homuth v. Metropolitan Street Railway, 129 Mo. 629, 31 S. W. 903, and distinguishes the Houston case. And the case of Winter v. Great Northern Ry. Co., 118 Minn. 487, 136 N. W. 1089, is readily distinguishable from the case at bar. And so of Lumley c. Wabash R. Co., 76 Fed. 66, 22 C. C. A. 60, and Union Pacific Railway v. Artist, 60 Fed. 365, 9 C. C. A. 14, 23 L. R. A. 581. In Chicago & N. W. Railway v. Wilcox, 116 Fed. 913, 54 G. C. A. 147, a suit in equity to rescind, approved in the Tatman Case, complainant compromised and released a claim for a broken hip. She knew when she settled that her hip had been broken, and that it was a bad break. She was induced by the statement of her own physician, who was also the company's physician, to believe, and did believe, that she would be well within a year, and she settled upon that basis. She was mistaken, and her injury and disability turned out to be permanent. It is held her mistake was not a mistake of fact, but a mistake in opinion." Colorado Springs etc Ry. v. Huntling (Colo.), 181 Pac. 129; Miles v. New York Cent. R. 178 N. Y. S. 673. 63 See supra, Sec. 94.

This is fully recognized so far as executed transactions are concerned irrespective of whether the relief sought is rescission or reformation, and also where the question concerns the rescission of executory contracts.64

The effect of the Statute of Frauds is not equally simple, for here equity, if it seeks to enforce an oral agreement by rectifying a contract or conveyance, is compelled to qualify a positive statutory enactment. Nevertheless, since equity has not shrunk from preventing the Statute of Frauds from working a fraud in cases where there has been part performance,65 there seems little reason where a conveyance has actually been made for hesitation in granting reformation; and, indeed, reformation of a conveyance in accordance with a prior oral agreement is almost universally allowed in England and in the United States, without regard to whether an increase or diminution of the terms of the conveyance is required.66 In Massachusetts ticular matter, and you do not put a new construction upon it, either the bill must be dismissed, or if the defendant suggests a new view which he is willing to submit to, then the Court has in some cases executed the contract with the variation as admitted or suggested by the answer." 69 The defendant may, however, set up the mistake as a reason why a court of equity should refuse to enforce a contract against him according to its terms, and in this case also the English court will give only limited relief,70 The illogical character of any objection to the reformation of an executory contract has been observed in England,71 and in one case, at least, reformation of such a contract has been allowed, where the Statute of Frauds had been satisfied.72 But generally without much distinguishing between the objection of the parol evidence rule and that of the Statute of Frauds, the English court has refused reformation where a conveyance has been made in exact conformity with a prior written contract, the error being in the executory contract.78 To allow reformation, it is said, would be in effect first to reform an executory contract and then enforce it as reformed; and doubtless this is true, but it is not so clear why it is objectionable.

64 See as illustrating the free introduction of parol evidence in accordance with the statement in the text: Town-shend v. Stangroom, 6 Ves. Jr. 328; Hunt v. Rousmanier, 8 Wheat. 174, 5 L. Ed. 589; Blackburn v. Randolph, 33 Ark. 119; Isenhoot v. Chamberlain, 59 Cal. 630; Pierson v. McCahill, 21 Cal. 122; Murray v. Dake, 46 Cal. 644; Arbaney v. Usel, 61 Colo. 311, 157 Pac. 204; Park Bros. v. Blodgett, etc., Co., 64 Conn. 28, 29 Atl. 133; Wall v. Arlington, 13 Ga. 88; Hunter v. Bilyeu, 30 111. 228; Schwass v. Herehey, 125 111. 653, 18 N. E. 272; Gray v. Woods, 4 Blackf. 432; Hausbrandt v. Hofler, 117 Iowa, 103, 90 N. W. 494, 94 Am. St. Rep. 289; Proctor v. Fife, 97 Kans. 431, 155 Pac. 931; Scott v. Spurr, 169 Ky. 575, 184 S. W. 866; Farley v. Bryant, 32 Me. 474; Ordeman v. Law-son, 49 Md. 135; Bush v. Merriman, 87 Mich. 260, 49 S. W. 567; Popplein v. Foley, 61 Md. 381; Gillespie v. Moon, 2 Johns. Ch. 585, 7 Am. Dec. 559; Forester v. VanAuken, 12 N. Dak. 175, 96 N. W. 301; Coates v. Smith, 81 Or. 556,160 Pac. 517; Christ v. Diffenbach, 1 Serg. & R. 464, 7 Am. Dec. 624;

Huss v. Morris, 63 Pa. 367; Tabor v. Cilley, 53 Vt. 487; Western Min. & Mfg. Co. v. Peytona, etc., Co., 8 W. Va. 406.

65 See supra, Sec. 494.

66 Johnson v. Bragge, [1901] 1 Ch. 28; Blackburn v. Randolph, 33 Ark. 119; Wall v. Arlington, 13 Ga. 88; Hunter v. Bilyeu, 30 11I. 228; Schwass v. Herehey, 125 111. 653, 18 N. E. 272; McGinnis v. Boyd, 279 111. 283, 116 N. E. 672; Dutch v. Boyd, 81 Ind. 146; Louisville, etc., R. Co. v. Power, 119 Ind. 269, 21 N. E. 751; Gelpcke, etc., Co. v. Blake, 15 Iowa, 387,83 Am. Dec. 418; Conaway v. Gore, 24 Kans. 389; Athey v. McHenry, 6 B. Mon. 50; Noel v. Gill, 84 Ky. 241, 1 S. W. 428; Levy v. Ward, 33 La. Ann. 1033; Bond v. Dorsey, 65 Md. 310, 4 Atl. 279; Glass v. Hulbert, 102 Mass. 24, 3 Am. Rep. 418; Goode v. Riley, 153 Mass. 585, 28 N. E. 228; Ruhling v. Hackett, 1 Nev. 360; Bellows v. Stone, 14 N. H. 175; Hitchins v. Pettingill, 58 N. H. 386; Wirtz v. Guthrie, 81 N. J. Eq. 271, 87 Atl. 134, 137; Gillespie v. Moon, 2 Johns. Ch. 585, 7 Am. Dec. 559, n.; Rider v. Powell, 28 N. Y. 310; Beardsand South Carolina, however, a distinction is taken between a suit by the grantor to diminish the property conveyed to the grantee and a suit by the latter to secure more than the conveyance purports to grant. In the latter case if there is no written memorandum of the original contract, containing all of its terms, reformation is not allowed.67 In defence of the rule generally prevailing, it may be said (1) that a constructive trust on the part of the defendant arises when he has received a conveyance of a greater amount than the parties intended, or where he has failed to convey all that was intended; or (2) that to allow the transaction to stand would operate as a fraud.68 The English court has been influenced doubtless by the necessities of the situation. A transaction while purely executory may be rescinded if it cannot be reformed, and the Statute of Frauds would not stand in the way of this, but rescission might work more injustice than it would cure when a conveyance has actually been made. To allow reformation or give no relief is then the only choice.