Even the power of equity to reform contracts has been to some extent borrowed by courts of law, in fact, though not in name; for the result attained by a court of equity may frequently be reached by a court of law by simply admitting evidence of the actual intention of the parties and enforcing the bargain which the parties intended to make.85 The same principle, may be applied by a court of law to an oral contract as to a writing. For instance, in case of a sale by sample, if the sample is subject to a secret defect unknown to the parties, the obligation of the seller is to furnish, not goods like the sample, but goods of the kind to which the sample seems to belong.86 In terms, such a contract obviously binds the seller to furnish defective goods only. But the mutual mistake as to a material fact can be rectified and the parties "put in the same position as if their erroneous assumption had been correct, and, therefore, their contract, instead of being avoided, is upheld, according to their true intention." 87

So recovery by a corporation has been allowed on a promise in terms made to a corporation of another name, the plaintiff corporation being in fact intended as the promisee; 87a and re-

"The right which one has to nullify an alleged ratification by him of a voidable release executed by him, by showing that when he was alleged to have so ratified, he was not aware of his private legal right arising out of the facts, to repudiate such release, is a substantive right, and not the mere rule by which a court of chancery administers his right; and, as such substantive right, it is available in avoidance of such alleged release, as well at law as in equity. If such* person filed his bill to cancel an alleged written ratification, on such ground, all that the court does is to cancel and annul the alleged written ratification, so that it shall not form the basis for the assertion of any right resulting therefrom to the party holding it against the person filing the bill. When such person is allowed to show at law want of knowledge of such private legal right to repudiate the release, the same end is accomplished, the proof cancels and annuls the alleged written ratification. It is the same substantive right, inhering in the very truth and justice of the case administered in both instances - administered in one form in one forum and in another form in another."

85 See an illustration of this, supra, & 302. But see Aradalou v. New York Ac. R. Co., 225 Mass. 235, 114 N. E. 297.

86 Heilbutt v. Hickson, L. R. 7 C. P. 438; Drummond v. Van Ingen, 12 A. C. 284; Coates v. Cook, 101 Ga. 586,28 S. E. 982. Compare Dickinson v. Gay, 7 Allen, 29, 83 Am. Dec. 656.

87 Sir F. Pollock, Wald's Pollock, Contracts (3d ed.), p. 620.

87a Blenkiron Bros. v. Rogers, 87 covery has been allowed of money paid under a written contract which because of a mistake reformable in equity provided for too large a payment.88 It seems probable that such a short cut to the relief to which the plaintiff is undoubtedly entitled will find favor with the courts, though the difference between the quantum of proof required by a court of equity for relief on the ground of mistake and that required by a court of law may well be urged in opposition.89 The situation just considered, where a promise in the contract was erroneously written for too large a sum must not be confused with one where an excessive payment is made for a conveyance of real estate and the deed recites the consideration which the plaintiff in fact paid. Here the only difficulty which the plaintiff meets is that he is endeavoring to contradict a recital of fact in a deed, not to deny a promise in the teeth of the parol evidence rule. Such a contradiction of recitals though formerly not permitted is now generally allowed at law for any purpose except that of invalidating the conveyance.90

Modern decisions, therefore, have generally permitted recovery of an overpayment for land though it is stated in recitals as the consideration for the conveyance.91 The question whether the original contract is merged in the deed is not involved. If there was a prior contract undoubtedly it is merged, but the plaintiff's recovery does not depend on the continued existence of a prior contract but on the fact that a larger payment has been made than was agreed.

Neb. 716, 127 N. W. 1062, 31 L. R. A. (N. S.) 127, Ann. Cas. 1912 A. 1043.

88 Ragsdale v. Turner, 141 Iowa, 604, 120 N. W. 100. But see contra, Boyoe v. Wilson, 32 Md. 122; Farquhar v. Farquhar, 194 Mass. 400, 80 N. E. 654; Borough Paper Co. v. Scher, 170 N. Y. S. 395. See, also, Keener, Quasi Contracts, 123; Woodward, Quasi Contracts, Sec. 180.

89 See 32 Harv. L. Rev. 179; also, supra, Sec. 750.

90 See supra, Sec. 115a.

91 Solinger v. Jewett, 25 Ind. 479, 87 Am. Dec. 372 (quoted with approval in Wolcott v. Frick, 40 Ind. App. 236, 81 N. E. 731); Goodspeed v. Fuller, 46 Me. 141, 71 Am. Dec. 572; Cardinal v. Hadley, 158 Mass. 352, 33 N. E. 575, 35 Am. St. Rep. 492; Wilson v. Randall, 67 N. Y. 338; White v. Miller, 22

Vt. 380; Butt v. Smith, 121 Wis. 566,99 N. W. 328, 105 Am. St. Rep. 1039 (cf. Ohlert v. Alderson, 86 Wis. 433, 57 N. W. 88). The decisions which seem opposed are either of early date or follow early cases without sufficient appreciation of the change in the law regarding the contradiction of recitals in sealed instruments, or they present facts where under no procedure was the plaintiff entitled to recover. Carter v. Beck, 40 Ala. 599; Williams v. Hathaway, 19 Pick. 387 (but see contra, Cardinal v. Hadley, 158 Mass. 352, 33 N. E. 575, 35 Am. St. Rep. 492); Howes v. Barker, 3 Johns. 506, 3 Am. Dec. 526 (but see contra, Wilson v. Randall, 67 N. Y. 338); Farmers', etc., Bank v. Galbraith, 10 Pa. St. 490, 51 Am. Dec. 498; Kreiter v. Bomberger, 82 Pa. St. 59, 22 Am. Rep. 750; Baker v. Barley, 34 Pa. Super. 169.

Under the name of construction also courts to some degree exercise a power of reforming instruments, refusing to give language its natural meaning where that is opposed to the probable intention of the parties.92