The desirable rule governing reformation is that if the writing actually executed does not contain all that the parties agreed that it should contain, it will be reformed 41 whether the reason why it fails to express the agreement is due to a mistake of fact or of law. If parties in their preliminary agreements ordinarily determined the exact words which should be inserted in the writing, an unintentional failure to include those words would necessarily involve mistake of fact. But parties frequently agree upon the object to be attained by the writing which they propose to make and not upon the details of the instrument by which the object shall be attained. If, subsequently, when the writing is executed the parties fail to notice that some provision to which they had previously agreed, has been omitted or added, the mistake is one of fact; but if their error consists in erroneously supposing that the words of the instrument with which they have made themselves acquainted are legally effective to secure the desired result, the mistake is one of law.

If the instrument executed by the parties fails to carry out the legal effect of the family agreement! without the addition of any circumstances of fraud or misrepresentation, for which there is no relief in the federal equity courts. Rogers v. Ingham, 3 Ch. Div. 351; Chandler v. Pomeroy, 143 U. S. 318, 337, 12 Sup. Ct. 410, 36 L. Ed. 169; Utermehle v. Norment, 197 U. S. 40, 56, 25 Sup. Ct. 291, 49 L. Ed. 655, 3 Ann. Cas. 520, and cases there cited; Bank of the United States v. Daniel, 12 Pet. 32, 57, 9 L. Ed. 989; Hunt v. Rousmaniere's Adm., 1 Pet. 1, 7 L. Ed. 27; Allen v. Galloway, 30 Fed. 466; Hamblin v. Bishop, 41 Fed. 74.

In Tilton v. Fairmount Lodge, 244 Ill. 617, 621, 91 N. E. 644, the court said: "Where a lodge agrees with the owner of a building to erect a second story thereon for a lodge room upon the understanding of both parties that the owner will convey the fee simple title to the second story to the lodge, but instead of a deed a ninety-nine year lease is entered into in the belief of both parties that their intention could be carried out legally in that way only, a court of equity cannot reform the lease so as to make it a conveyance of the fee simple title."

"The parties cannot be said to have been mutually mistaken as to any question of fact. They each understood fully what language was to be contained in the instrument. It is true, the legal effect of that language is different from what they understood it to be or from what they intended. This cannot be said, in any sense, to be a mistake of fact. It was a mistake of law as to the legal effect of the language used and adopted by the parties and is not such a mistake as equity will relieve against."

41 See supra, Sec.Sec. 1548, 1549.

1st. Where their intended object was so indefinite, or if the object itself was definite the means by which it might be carried out so various, that the court can not fix on any possible writing and hold that it, rather than another, will express the intention of the parties.

2d. Where the parties acting advisedly have chosen one means of carrying out their object and on consideration rejected another, even though the first proves less adequate than the second to effectuate the object.42

42 In neither of these cases is there any reason why rescission should not be allowed, if justice will thereby be attained. An illustration of the latter type is the leading case of Hunt v. Rousmaniere's Adm., 1 Pet. 1, 10, 7 L. Ed. 27. Both the parties declared that they had called upon an attorney to request him to draw writings to secure a loan by means of a vessel, and to obtain his opinion as to the kind of instrument which would give the most perfect security to the lender. The attorney told them that a bill of Bale, or mortgage, would be security, but that an irrevocable power of attorney, such as was afterwards executed, would be as effectual and good security, as either of the others; and would prevent the necessity of changing the vessel's papers, and of taking possession of the vessel, upon her arrival from sea. The parties then requested him to draw such an instrument, as, in his opinion, would most effectually and fully secure Mr. Hunt; and the plaintiff frequently asked him, whilst he was drawing the power, and after he had finished and read it to the parties, if he was quite certain that the power would be as safe and available to him, as a bill of sale, or mortgage, and that upon his assurance that it was, it was then executed.

The court while saying: "Where an instrument is drawn and executed, which professes, or is intended, to carry intoexecution,an agreement, whether in writing or by parol, previously entered into, but which, by mistake of the draftsman, either as to fact or law, does not fulfil, or which violates the manifest intention of the parties to the agreement, equity will correct the mistake, so as to produce a conformity of the instrument to the agreement;" held the plaintiff entitled to no relief on the following ground: "That the general intention of the parties was, to provide a security, as effectual as a mortgage of the vessels would be, can admit of no doubt; and if such had been then-agreement, the insufficienoy of the instruments, to effect that object, which were afterwards prepared, would have furnished a ground for the interposition of a Court of Equity, which the representatives of Rousmaniere could not

Sec.1687. Mistake As To Legal Consequences

It is said that where the parties are under no mistake as to the language of the instrument in question reformation will not be allowed because of a mistake of the parties as to some legal consequences of the instrument.42

The correctness of such a statement may be questioned where there was an understanding either (1) that the expected legal consequences should be provided for in the writing, or (2) that a general purpose or object should be effectuated by the writing, which would be interfered with if not defeated by the legal consequences of the writing. Except in the few jurisdictions where relief is denied in every case where the parties were under no mistake as to the words of the writing, reformation would be allowed on the first supposition. On the second supposition if the intended object will not be defeated, but merely impaired, the question becomes one of degree, not only as to the extent to which the intended purpose is impaired but as to the extent of variation in the instrument necessary to effectuate the purpose. Equity may order a seal attached to a conveyance in easily have resisted. But the plaintiff was not satisfied to leave the kind of security which he was willing to re-ceive, undetermined; having finally made up his mind, by the advice of his counsel, not to accept of a mortgage, or bill of sale, in nature of a mortgage. He thought it safest, therefore,' to designate the instrument; and, having deliberately done so, it met the view of both parties, and was as completely incorporated into their agreement, as were the notes of hand for the sum intended to be secured."

"It may therefore admit of some doubt, at least, whether the loss of the intended security is to be attributed to a want of foresight, in the parties, or to a mistake of the counsel, in respect to a matter of law. The case will, however, be considered in the latter point of view. The question then, is, ought the Court to grant the relief which is asked for, upon the ground of mistake arising from any ignorance of law? We hold the general rule to be, that a mistake of this character is not a ground for reforming a deed founded on such mistake; and whatever exceptions there may be to this rule, they are not only few in number, but they will be found to have something peculiar in their character." See also Irnham p. Child, 1 Brown's Ch. Cas. 92; Larkins v. Biddle, 21 Ala. 262, 256; Lanning v. Carpenter, 48 N. Y. 406; Pitcher v. Hennessey, 48 N. Y. 415, 424.

43 Re Railway Time Tables Pub. Co., L. R. 42 Ch. D. 98; Hunt v. Rous-maniere's Adm., 1 Pet. 1, 7 L. Ed. 27; Orr v. Echols, 119 Ala. 340, 24 So. 357; Taylor v. Buttrick, 165 Mass. 547, 43 N. E. 507, 52 Am. St. Rep. 530; Mitchell v. Holman, 30 Or. 280, 47 Pac. 616; Lott v. Kaiser, 61 Tex. 665; Andrus v. Blassard, 23 Utah, 233, 63 Pac. 888, 54 L. R. A. 354. See also Louisville & N. R. Co. v. Cox, 133 Ga. 763, 66 S. E. 1088.

! order that it may have the intended effect, and yet refuse to order a power of attorney reformed into a chattel mortgage on the same ground.