This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
In reformation as in construction,1 the question is sometimes presented as to the effect of a contract containing inconsistent provisions, where the predominant general intent is apparently contradicted by some subordinate particular intent. When this question is presented in reformation, the general intent if clear is enforced and reformation is given by disregarding the inconsistent subordinate intent when due to mistake.2 Thus where A intended to sell and B to buy one half of A's tract which they think is lot 4, A owning lots 4 and 5, but lot 4 is much larger than lot 5, a contract to sell lot 4 will be reformed to transfer one half of the entire tract.3 Where A agrees to mortgage to B all his land, not exempt, and by mistake of law both parties believe that A has an exempt homestead in a certain tract, and accordingly omit such tract from the description of the realty mortgaged,4 or where A agrees to pay B a certain sum per yard for excavation, but in reducing the contract to writing the total amount was incorrectly stated because of a mistake in computing the number of yards,5 reformation may be had and the real intention of the parties expressed and enforced. In applying this principle care must be taken not to make a new contract for the parties under guise of enforcing the predominant intent. Thus where the parties agreed on a specific boundary line, thinking it the true one, the court will not assume that their paramount intent was to locate the boundary at the true line and reform the contract so as to show that intention.6
23 Wilson v. Watkins, 48 S. C. 341; 26 S. E. 663.
1 Ware v. Cowles, 24 Ala. 446; 60 Am. Dec. 482; Dunham v. New-Britain, 55 Conn. 378; 11 Atl. 354; Dwight v. Pomeroy, 17 Mass. 303; 9 Am. Dec. 148; Martin v. Hamlin, 18 Mich. 354; 100 Am. Dec. 181; Seitz Brewing Co. v. Ayres, 60 N. J. Eq. 190; 46 Atl. 535; Meade v. Ry., 89 Va. 296; 15 S. E. 497; Braun v. Rendering Co., 92 Wis. 245; 66 N. W. 196. "It was a mere simultaneous parol agreement which cannot be resorted to to vary or control the written contract." Braun v. Rendering Co., 92 Wis. 245, 249; 66 N. W. 196.
2 See Ch. LVI.
3Quinn v. Roath, 37 Conn. 16; Coger v. McGee, 2 Bibb. (Ky.) 32l; 5 Am. Dec. 610; Taylor v. Gilman, 25 Vt. 411.
4 Wilson v. Moriarty, 88 Cal. 207; 26 Pac. 85: (apparently ignoring Murray v. Dake, 46 Cal. 644).
1See Sec. 1113.