Where reformation has been sought of an executory contract, the English courts have felt insuperable difficulty due not only to the Statute of Frauds (which happened to be applicable in nearly all the cases where reformation was sought) but also to the parol evidence rule. If a complainant seeks to reform an executory contract and to get specific performance of it as reformed, it has been held that "It is perfectly clear, that if the answer refuses to admit that there was a mistake in the parley v. Duntiey, 69 N. Y. 577, 584; Davie v. Ely, 104 N. C. 16,10 S. E. 138, 5 L. R. A. 810, 17 Am. St. Rep. 667; Davenport v. The Widow and Heirs of Sovil, 6 Oh. St. 459; Ormsby v. Long-worth, 11 Oh. St. 653, 666; States v. Wiedner, 35 Ohio St. 555; Smith v. Butler, 11 Ore. 46, 4 Pac. 517; Schet-tiger 9. Hopple, 3 Grant (Pa.), 54; Huastr. Morris, 63 Pa. St. 367; Johnson v. Johnson, 8 Baxt. 261; Bumpas v. Zachary (Tex. Civ. App.), 34 S. W. 672; Goodell v. Field, 15 Vt. 448;

Petesch v. Hambach, 48 Wis. 443, 4 N. W. 565; Allen v. Kitchen, 16 Idaho, 133, 100 Pac. 1052.

67 Glass v. Hulbert, 102 Mass. 24, 3 Am. Rep. 418; Goode v. Riley, 153 Mass. 585, 587, 28 N. E. 228; Kennedy v. Poole, 213 Mass. 495, 498, 100 N. E. 635, L. R. A. 1917 A. 600; Westbrook v. Harbeson, 2 McC. Ch. 112. See also Andrews v. Youngstown Coke Co., 39 Fed. 353, 354.

68 See Wirtas v. Guthrie, 81 N. J. Eq. 271, 87 Atl. 134.

69 Lord St. Leonards in Wilson v. Wilson, 5 H. L. C. 40, 65.

70 "Our opinion is,that where persons sign a written agreement upon a subject, obnoxious to the statute that has been so particularly referred to, and there has been no circumvention, no fraud, nor (in the sense in which the term 'mistake' must be considered as used for this purpose) mistake, the written agreement binds at law and in equity, according to its terms, although verbally a provision was agreed to, which has not been inserted in the document; subject to this, that either of the parties, sued in equity upon it, may perhaps be entitled in general, to ask the Court to be neutral, unless the plaintiff will consent to the performance of the omitted term." Knight Bruce, L. J., in Martin v. Pycroft, 2 De G. Mc. N. & G. 786,796. See, however, Jervis v. Berridge, L. R. 8 Ch. 351.

71 "To refuse rectification, therefore, on the ground that to grant it would offend against a rule of law, appears to me to strike at the root of equitable jurisdiction in the matter, while to grant relief where the error has crept into one document and refuse it where it is embodied in two is inconsistent with equitable principle, for equity regards the substance rather than the form of a transaction. It is to be observed that the rule in question, which excludes parol evidence to contradict a written agreement, applies with even greater force to a deed." Thompson v. Hickman, [1907] 1 Ch. 550,562.

72 Olley v. Fisher, 34 Ch. D. 367. In this case the court rectified an executory agreement and in the same proceeding specifically enforced it as rectified, the Statute of Frauds being no bar because there had been part performance. The court followed a suggestion in Fry on Specific Performance that wherever the Statute of Frauds creates no bar there is no difficulty in entertaining an action for the reformation of an executory contract, and the specific performance thereof. This decision seems not to have been cited subsequently by the English court. It seems inconsistent with the language at least of other English cases. Fry's treatment of the subject has been thus commented upon by an English writer (Ashburner, Equity, 543): "The learned author appears to deny (s. 814) that there is any distinction as to rectification between executed and executory contracts; but the authorities are based on this distinction.