A form of mistake, which involves different principles from the form already discussed, exists where the parties to a written contract know the very words which they insert in the contract, but do not intend that it shall have the legal effect which it actually has. This form of mistake is of course due to ignorance or mistake of law. The question of the right of either party to reformation in such cases depends in the first instance on whether the parties had a prior valid oral contract which they have attempted to reduce to writing, differing from the written contract. If there has been no prior valid oral contract, differing from the written contract, one party cannot have reformation to make the contract express his intention, since this would be to substitute his intention for the contract between the two parties.1 Illustrations of mistake of this sort where reformation has been refused are as follows: Where the parties execute an irrevocable power of attorney, thinking it v. McLean, 45 Barb. (N. Y.) 478; Kent v. Manchester, 29 Barb. (N. Y.) 595; Hall v. Reed, 2 Barb. Ch. (N. Y.) 500; McHugh v. Ins. Co., 48 How. Pr. (N. Y.) 230; Lyman v. Ins. Co., 17 Johns. (N. Y.) 373; Jones v. Warren, 134 N. C. 390; 46 S. E. 740; Neininger v. State, 50 O. S. 394; 40 Am. St. Rep. 674; 34 N. E. 633; Evants v. Strode, 11 Ohio 480; 38 Am. Dec. 744; Wanner v. Lundis, 137 Pa. St. 61; 20 Atl. 950; Graham v. Guinn (Tenn. Ch. App.), 43 S. W. 749; Kelley v. Ward, 94 Tex. 289; 60 S. W. 311; affirming 58 S. W. 207; Griffin v. Salt Lake City, 18 Utah 132; 55 Pac. 383; Pennybacker v. Laidley, 33 W. Va. 624; 11 S. E. 39.

1Snell v. Ins. Co., 98 U. S. 85; Hunt v. Rousmanier, 8 Wheat. (U. S.) 174; Hunt v. Rousmanier, 1 Pet. (U. S.) 1; Bank v. Daniel, 12 Pet. (U. S.) 33; Travelers' Ins. Co. v. Henderson, 69 Fed. 762; 16

C. C. A. 390; Illingworth v. Spaulding, 43 Fed. 827; Tyson v. Chestnut, 100 Ala. 571; 13 So. 763; Ohlander v. Dexter, 97 Ala. 476; 12 So. 51; Hershey v. Luce. 56 Ark. 320, 323; 19 S. W. 963; 20 S. W. 6; Loftus v. Fischer, 106 Cal. 616; 39 Pac. 1064; Goodenow v. Ewer, 16 Cal. 461; 76 Am. Dec. 540; Hackemack v. Wiebrock, 172 111. 98; 49 N. E. 984; affirming 71 111. App. 170; Wolsey v. Neeley, 46 I11 App. 387; Calverly v. Harper, 40 111. App. 96; Marshall v. Westrope, 98 la. 324; 67 N. W. 257; Jurgen-sen v. Carlsen, 97 la. 627; 66 N. W. 877; Brintnall v. Briggs, 87 la. 538; 54 N. W. 531; Bellande's Succession, 42 La. Ann. 241; 7 So. 535; Taylor v. Buttrick. 165 Mass. 547; 52 Am. St. Rep. 530; 43 N. E. 507; Canedy v. Marcy, 13 Gray (Mass.) 373; Renard v. Clink, 91 Mich. 1; 30 Am. St. Rep. 458; 51 N. W. 692; Benson v. Markoe, 37 Minn. 30; will operate as a mortgage;2 or a bill of sale, thinking that it will operate as a chattel mortgage ;3 or a contract for the surrender of a lease, thinking that it will operate as an option, to be accepted at the election of one party ;4 where an insurance policy is taken in the name of a mortgagee, who applies for it, thinking that it will operate as if taken out by the owner of the building with a clause making the loss payable to the mortgagee ;5 or in the name of the husband who effects it, thinking that it will protect the interest of his wife, the real owner of the building;6 or payable to the owner who takes it, thinking that it will protect the interest of the contractor who is erecting the building ;7 or a contract which a party to it executes, believing that it does not make him liable as partner.8 So if the parties know and intend the very words used, the fact that such words do not pass the estate intended owing to mistake of law does not justify reformation. Thus where a deed is made to A and his "minor heirs," under the belief that "heirs" is equivalent to "children,"9 or A deeds land to B, his daughter, and C, her husband, "and their bodily heirs," thinking that this includes all the heirs of her body,10 no relief can be given. Rescission is also refused in cases of this sort. Thus where A deeded a right of way to a railroad not knowing that it would prevent him from recovering damages inflicted on the rest of his property by the operation of the railroad, he cannot avoid his contract, at least where the railroad company did not know of his mistake and take advantage of it.11

5 Am. St. Rep. 816; 33 N. W. 38; Gaffney Mercantile Co. v. Hopkins, 21 Mont. 13; 52 Pac. 561; Mullin v. Eaton (N. H.), 19 Atl. 371; Ordway v. Chace, 57 N. J. Eq. 478; 42 Atl. 149; Berry v. Ins. Co., 132 N. Y. 49; 28 Am St. Rep. 548; 30 N. E. 254; King v. Holbrook, 38 Or. 452; 63 Pac. 651; Mitchell v. Holman, 30 Or. 280; 47 Pac. 616; Kleinsorge v. Rohse, 25 Or. 51; 34 Pac. 874; Archer v. Lumber Co., 24 Or. 341; 33 Pac. 526; Cochran v. Pew, 159 Pa. St. 184; 28 Atl. 219; Schmid v. Ins. Co. (Tenn. Ch. App.), 37 S. W. 1013; Deseret National Bank v. Dinwoodey, 17 Utah 43; 53 Pac. 215; Phillips v. Port Townsend Lodge, 8 Wash. 529; 36 Pac. 476; St. Clara Female Academy v. Ins. Co., 93 Wis. 57; 66 N. W. 1140.

2 Hunt v. Rousmanier, 8 Wheat. (U. S.) 174.

3Hershey v. Luce, 56 Ark. 320, 323; 19 S. W. 963; 20 S. W. 6.

4Ohlander v. Dexter, 97 Ala. 476; 12 So. 51.

5 Ordway v. Chace, 57 N. J. Eq 478; 42 Atl. 149.

6 Schmid v. Ins. Co. (Tenn. Ch. App.), 37 S. W. 1013.

7 St. Clara Female Academy v. Ins. Co., 93 Wis. 57; 66 N. W. 1140.

8 Woolworth v. McPherson, 55 Fed. 558.

9 Seymour v. Bowles, 172 111. 521; 50 N. E. 122.

10Atherton v. Roche, 192 111. 252; 55 L. R. A. 591; 61 N. E. 357.

If, on the other hand, there has been a valid oral contract prior to the written contract which the parties have failed to reduce to writing correctly because of mistake as to the legal effect of the words used in the written contract, reformation can be had, and the written contract thus made to conform to the oral agreement.12 Thus where A and B agreed that a certain debt should bear interest, but omitted reference thereto from the note given for such debt, thinking it would bear interest without a provision therefor;13 or agreed orally that B would accept such amount of tool steel prior to January 1, 1890, as he needed in his work, not to exceed fifteen tons, and by mistake as to the effect of the written contract worded it so that B was to take fifteen tons of tool steel prior to January 1, 1890,14 reformation may be had to make the written contract express the oral agreement. So if the contract provides for a conveyance to A and B, and by mistake as to the legal effect of the deed conveyance is made to A only,15 or if the contract requires a conveyance of an undivided four fifths interest in certain realty and by mistake as to its legal effect the grantee accepts a deed which conveys only "three fifths" thereof,10 reformation may be had. Where an instrument intended as a receipt for an advancement has by mistake as to the legal effect thereof been drawn in the form of a note, reformation may be given.17 Where specific property is agreed upon, a misdescription thereof may be reformed even if the parties know the very form of expression which they have used to describe it.18 Reformation will be given where a mortgage is drawn covering "fixtures and furniture " under the belief that suck description includes property which in law comes under neither of these terms.19 So where the parties agreed on specific property to be covered by insurance a mistake in describing it, due to a mistake as to the effect of the terms used in describing it may be corrected by reformation.20 Where a husband and wife have agreed to convey a homestead and by mistake as to the legal effect of the conveyance the husband alone executes it, reformation may be had.21 There are, however, cases in which reformation has been denied where the parties have deliberately chosen language which does not express their intention as embodied in their oral contract, and where the mistake is not as to the words used, but only as to their legal effect. Reformation has been denied where a guardian under these circumstances executes a mortgage intended to bind his ward's property only, and instead makes himself personally liable.22

11Eldridge v. R. R., 88 Me. 191; 23 Atl. 974.

12 Hunt v. Rousmanier, 1 Pet. (U. S.) 1; Park v. Blodgett, 64 Conn. 28; 29 Atl. 133; Palmer v. Ins. Co., 54 Conn. 488; 9 Atl. 248; Loudermilk v. Loudermilk, 98 Ga. 780; 25 S. E. 927; Pierce v. Houghton, 122 la. 477; sub nomine, Fierce v. Houghton. 98 N. W. 306; Bon-bright v. Bonbright, - la. -; 98 N. W. 784; Turpin v. Gresham, 106 la. 187; 76 N. W. 680; Williams v. Hamilton, 104 la. 423; 65 Am. St. Rep. 475; 73 X. W. 1029; Williams v. Everham, 90 la. 420; 57 X. W. 901; Lee v. Percival, 85 la. 639; 52 X. W. 543; Reed v. Root, 59 la. 359; 13 X. W. 323; Stafford v. Fetters. 55 la. 484; 8 X. W. 322; Holdsworth v. Tucker, 143 Mass. 369; 9 X. E. 764; Sparks v. Pittman, 51 Mass. 511; Corrigan v. Tiernay, 100 Mo. 276; 13 S. W. 401; Michigan Buggy Co. v. Woodson, 59 Mo. App. 550; Eastman v. Provident, etc., Association, 65 X. H. 176; 23 Am. St. Rep. 29; 5 L. R. A. 712; 18 Atl. 745; Avery v. Society, 117 X. Y. 451; 23 X. E. 3; Maher v Ins. Co., 67 X Y. 283; Kornegay v. Everett, 99 X. C. 30; 5 S. E. 418; Lutz v. Thompson, 87 X. C. 334; Sprague v. Thurber, 17 R. I. 454; 22 Atl. 1057; Beardsley v. Knight, 10 Vt. 185; 33 Am. Dec. 193; Wisconsin, etc., Bank v. Mann, 100 Wis. 596; 76 X. W. 777; (questioning Neff v. Rains. 33 Wis. 689).

13 Loudermilk v. Loudermilk, 98 Ga, 780; 25 S. E. 927.

14Park v. Blodgett, 64 Conn. 28; 29 Atl. 133.

15Corrigan v. Tiernay, 100 Mo. 276; 13 S. W. 401.

16 Parish v. Camplin, 139 Ind. 1; 37 N. E. 607.

17 Hausbrandt v. Hofler, 117 la. 103; 94 Am. St. Rep. 289; 90 N. W. 494.

18Walden v. Skinner, 101 U. S. 577; Eberle v. Heaton, 124 Mich. 205; 82 N. W. 820; State v. Lo-renz, 22 Wash. 289; 60 Pac. 644; Jenkins v. Jenkins University, 17

Wash. 173; 50 Pac. 785; modifying on rehearing 17 Wash. 160; 49 Pac. 247.

19 Ryder v. Ryder, 19 R. I. 188; 32 Atl. 919.

20Maher v. Ins. Co., 67 N. Y. 283.

21 Whitmore v. Hay, 85 Wis. 240; 39 Am. St. Rep. 838; 55 N. W. 708.

22Andrus v. Blazzard, 23 Utah 233; 54 L. R. A. 354; 63 Pac. 888.

So if the parties intend to convey a fee, but deliberately select words which pass a lesser estate, reformation has been denied.23