As to other cases than those referred to in a preceding section,94 the expressions are numerous that mistake, in order to justify relief, must be mutual or the error of one party must be known to the other. That this is true of reformation is nowhere doubted; but some cases afford countenance for the doctrine that unilateral mistake while the contract is still executory and the parties can be put in statu quo, may afford ground for rescission.98 This has been most frequently attempted where a price was bid which because of erroneous arithmetical processes or by the omission of items was based on a mistake. Rescission has been allowed in several cases of this and other kinds,96

92 McElroy v. Maxwell, 101 Mo. 294, 14 S. W. 1. And see supra, Sec. 1425.

93 Warden v. Riser, 38 Kans. 86, 16 Pac. 60; Alexander v. Brogley, 62 N. J. L. 584, 41 Atl. 691, 63 N. J. L. 307,43 Atl. 888; Smith v. Smith, 134 N. Y. 62, 31 N. E. 258, 30 Am. St. Rep. 617. But see Reid v. Bradley, 105 Iowa, 220,74 N. W. 896; Dowagiac Mfg. Co. v Schroeder, 108 Wis, 109, 84 N. W. 14.

94 1573.

95 In Moffett, etc., Co. v. Rochester, 91 Fed. 28, 32, 33 C. C. A. 319, 62 U. S. App. 392, the court speaking of this doctrine said: "The court below adopted the opinion which has been sometimes expressed obiter by judges, and frequently quoted by text writers, that equity will not reform a written contract unless for the mistake of both parties, but may rescind and cancel one upon the ground of a mistake by either. Thus, it is said in Dulany v. Rogers, 50 Md. 533: 'A mistake on one side may be ground for rescinding, but not for reforming, a written agreement,' See also Diman v. Providence, etc., Railroad Co., 5 R. I. 130; Hearne v. Insurance Co., 20 Wall. 488, 491, 22 L. Ed.

396; Smith v. Mackin, 4 Lans. 41. The opinion seems to have originated in the observation in Mortimer v. Short-all, 2 Dru. & War. 373, that 'a mistake on one side might be a ground for rescinding a contract, but could never be relied on as a reason for taking from a man what he thought he was to get under his agreement,' - an observation which is neither lucid nor logical when read disconnected with the context. What the proposition means, and ail it means, is that a contract cannot be reformed into a new contract for the mistake of one party only, but may be rescinded for a mistake of one party whenever the circumstances of the case are such that it would be inequitable to allow the other party to enforce it, and inadequacy of consideration alone is not such a circumstance. Eyre v. Potter, 15 How. 42, 58, 59, 14 L. Ed. 592. A very extended examination of the reports has failed to disclose a case in which a judgment rescinding a contract has proceeded solely upon the ground that the terms as reduced to writing although expressing the understanding of one party, did not express that of the other.

In all the reported cases where there was not the element of mutual mistake, or mistake of one side with knowledge on the other, there was, in the language of Addison, [on Contracts] 'some undue influence, misrepresentation, surprise, or abuse of confidence,' or the contract was so oppressive as to be unconscionable." The decision from which this quotation is taken was reversed in the Supreme Court (see the following note); but the correctness of the principles stated in the above quotation is reaffirmed in Star-Chronicle Pub. Co. v.. New York Evening Post, 256 Fed. 435, 443, 167 C. C. A. 563, and the contract in suit was specifically enforced in spite of the defendant's unilateral mistake, the court citing in support of its allowance of this remedy, Tamplin v. James, 15 Ch. D. 217; May v. Platt, [1900] 1 Ch. 616; Swaialand v. Dearsley, 29 Beav. 430; Dyas v. Stafford, 7 L. R. Ir. 606. 96 In St. Nicholas (Smirch v. Kropp, 135 Minn. 115,160 N. W. 500, L. R. A. 1917 D. 741, a suit to recover the amount of a certified check deposited with the plaintiff's bid for the erection of a church, the court held that a mistake in computation of the bid owing to the omission of an important item of the cost, justified a cancellation of the contract and a recovery of the deposit. The court said: "This case upon its facts is not distinguishable from Moffett H. & Co. v. Rochester, 178 U. S. 373, 44 L. Ed. 1106, 20 Sup. Ct. Rep. 957, except that there notice of the error was given when the bids were opened; but that can be of no consequence, since under the statute there applicable the bid could not be withdrawn after being submitted. The court rescinded the accepted proposal to construct certain municipal improvements. This power of a court of equity to rescind or cancel a contract entered while one party labored under a mistake as to a fact of impelling importance to him in entering it is recognised in Brown v. Lamphear, 35 Vt. 252. And in speaking of the case of Diman v. Providence, W. & B. R. Co., 5 R. I. 130, the court in Fehlberg v. Cosine, 16 R. I. 162,13 Atl. 110, says: 'This case recognizes another rule of equity, - that where there has been a material mistake upon one side the court may rescind and cancel the agreement, where it can do so without injustice to the other party. There are two principal classes of cases in which this power of the court is exercised. One includes cases of executory contracts and the like, where the parties can be put in statu quo. In these cases the parties have not, in reality, agreed; their minds have not met; and if one, without fault on.his part, has bound himself to something materially different from what he supposed it to be, which can be annulled without loss or injustice to the other side, it is deemed . . . inequitable to enforce it.' See also Smith v. Mackin, 4 Lane. 41; School Comrs. v. Bender, 36 Ind. App. 164, 72 N. E. 154; Goodrich v. Lathrop, 94 Cal. 56, 29 Pac. 329, 28 Am. St. Rep. 91, and Werner v. Raw-son, 89 Ga. 619, 15 S. . 813, where the vendor made a mistake m respect to the purchase price of land and the contract had been executed, still the court rescinded the deal, holding: 'while a court of equity will not reform a written contract upon the ground of mistake, unless the mistake is shown to be common to both parties, yet it may exercise its powers to grant relief, m a proper case, by rescinding and cancelling the writing upon the though denied in others.97 Where relief is allowed it is generally said to be essential that the party seeking relief shall not have been guilty of negligence.98 ground of a mistake of facts material to the contract by one party only.' "In Scott v. Hall, 58 N. J. Eq. 42,

43 Atl. 50, where the vendor in a conditional sale contract agreed to transfer the chattels to the one in possession for $525, on the mistaken supposition that there was $650 due on the contract, instead of $950 and the check for $525 was already in the hands of the vendor's agent when the mistake was discovered, the court rescinded the bargain, Vice Chancellor Pitney, saying: 'Now it seems to me plain enough that, having agreed upon a sum based on $650 being due, when there was in fact $950 due, this court ought to relieve him from a contract made upon such mistaken basis, unless, before notice, the other party has so acted upon it as that it would be unjust to him to be compelled to submit to rescission. Now in this case notice was given immediately to defendant's counsel and while the affair was unfinished and not concluded in the manner in which the parties intended to conclude it; for it was their intention that there should be a written transfer of the title.'

"So here there was to be a formal contract executed. That a mistake by one party as to price is material and ground for holding that the minds of the parties did not meet, see Rowland v. New York, N. H. A H. R. Co., 61 Conn. 103, 23 Atl. 755, 29 Am. St. Rep. 175; De Voin v. De Voin, 76 Wis. 66,

44 N. W. 839; and Webster v. Cecil, 30 Beav. 62, 54 Eng. Reprint, 812."

The court distinguished Steinmeyer v. Schroeppel, 226 111. 9, 80 N. E. 564, 10 L. R. A. (N. S.) 114, 117 Am. St. Rep. 224; and Tatum v. Coast Lumber

Co., 16 Idaho, 471, 101 Pac. 957, and other authorities cited in the annotation to that case in 23 L. R. A. (N. S.) 1109, on the ground that there the person laboring under a mistake had been guilty of negligence. In the Minnesota case the court and jury found that there was no negligence, but it seems difficult to reconcile the omission of structural iron from the computation of the cost of the church with freedom from negligence. See also further on the question of unilateral mistake, Starr-Chronicle Pub. Co. v. New York Evening Post, 256 Fed. 435, 167 C. C. A. 563; Barfield v. Price, 40 Cal. 535; Neill v. Midland R. Co., 20 L. T. (N. S.) 864; Georgia Code, {4579; Norton v. Bohart, 105 Mo. 615, 631, 16 S. W. 598; Harper v. Newburgh, 159 N. Y. App. D. 696, 145 N. Y. S. 59; Buck v. Equitable Life Assur. Soc., 96 Wash. 683, 165 Pac. 878; Fearon Lumber & Veneer Co. v. Wilson, 5l W. Va. 30, 41 S. E. 137, 140. In England where counsel consent to a compromise under a mistake of fact, the mistake though unilateral may be ground for relief if no prejudicial change of situation has occurred, Hickman v. Berens, [1895] 2 Ch. 638, but it cannot be confidently assumed that this rule has broader application than to mistakes of counsel. See Fowler v. Sugden, 115 L. T. 51.

97 American Water Softener Co. v. United States, 50 Ct. CI. 209; Steinmeyer v. Schroeppel, 226 111. 9,80 N. E. 564, 10 L. R. A. (N. S.) 114, 117 Am. St. Rep. 224; Tatum v. Coast Lumber Co., 16 Idaho, 471, 101 Pac. 957, 23 L. R. A. (N. S.) 1109; Griffin v. O'Neil, 47 Kan. 116, 27 Pac. 826, 48 Kan. 117, 29 Pac. 143; Leonard v. Howard, 67

98 See cases cited in the preceding notes and also infra Sec. 1596.