Sec 208

To sustain a decree for the rectification of a contract (in other words, for the substitution of an amended correct contract for one containing terms held to be incorrect), the evidence must be strong and plain. When parties use written, formal terms to express their intention, the inference is that these terms were properly chosen; and business would be exposed to great peril if these terms could be set aside and the tenor of the document varied by any but clear and strong proof. In England it has been held that when the defendant denies the plaintiff's allegation of mutual mistake, the reshould be no decree of rectification unless the plaintiff's allegation is supported, at least in "part, by written proof;1 and although in this country this rigid test is not applied,2 yet we have numerous cases in which it is held that rectification will not be decreed unless mutual mistake be shown beyond reasonable doubt. "To substitute a new agreement for one which the parties have deliberately subscribed, ought only to be permitted upon evidence of a different intention, of the clearest and most satisfactory description. It is clear that a person who seeks to rectify a deed upon the ground of mistake, must be required to establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be made conformable continued concurrently in the minds of all parties down to the time of its execution, and must be able to show exactly and precisely the form to which the deed ought to be brought."1 This is the settled English rule ;2 and such also is the rule in the United States.3-Lord Thurlow's dictum,4 that the evidence must be "strong, irrefragable," is thus justly criticized by Proof should be strong and plain.

Dulany v. Rogers, 50 Md. 524; Ren-shaw v. Lefferman, 51 Md. 277 ; Roun-savell v. Pease, 45 Wis. 506 ; James v. Bank, 17 Ala. 69. In 2 Ch. on Cont., 11 Am. ed. 1024, the rule is stated to be that "a court of equity will not rectify or rescind a contract merely on the ground of a mistake of one of the parties in making it;" and to this several of the above cases are cited. But while this is correct so far as it concerns rectification, since a contract cannot be declared to be what both parties did not intend, it does not hold good as to rescission, since there is no contract if both parties did not intend the same thing. And specific performance will be refused if the parties did not intend the same thing in essence. Supra, sec 4 ; Higginson v. Clowes, 15 Ves. 516; Baxendale v. Seale, 19 Beav. 601; Spurr v. Benedict, 99 Mass. 463 ; Kyle v. Kavanagh, 103 Mass. 356.-V., a married woman, entered into an agreement with P. to sell to him certain property for $4000 in gold. In drawing the deed, V.'s husband, by mistake, inserted as consideration $4000 in currency. On the discovery of the mistake, V. sued P. to recover the difference. It was held that unless a mutual mistake should be proved, there was no ground for recovery. Renshaw v. Lefferman, 51 Md. 277. " If a contract should be reformed upon proof of the mistake of one of the parties as to its terms or legal effect, the injustice would be done of imposing upon the other party a contract to which he never assented." Morton, J., German Ins. Co. v. Davis, 131 Mass. 317.

1 Pollock, Wald's ed. 452 ; Davies v. Fitton, 2 Dr. & War. 225 ; Mortimer v. Shortall, 2 Dr. & War. 363 ; but see for a less stringent rule Murray v. Parker, 19 Beav. 305. '.

2 Canedy v. Marcy, 13 Gray, 373 ; McMillan v. Fish, 29 N. J. Eq. 610, and cases cited Wh. on Ev. sec 1019 et seq.

1 Fowler v. Fowler, 4 De G. & J. 250.

2 Pollock, Wald's ed. 453; Shel-burne v. Inchiquin, 1 Bro. Ch. 338; Townshend v. Stangroom, 6 Ves. 332.

3 Graves v. Ins. Co., 2 Cranch, 442; Grymes v. Sanders, 93 U. S. 55 ; Wal-den v. Skinner, 101 U. S. 577 ; Brown v. Holyoke, 53 Me. 9 ; Cutler v. Smith, 43 Vt. 577 ; Sawyer v. Hovey, 3 Allen, 331; Glass v. Hulbert, 102 Mass. 24; Russell v. Barry, 115 Mass. 300 ; Blake-man v. Blakeman, 39 Conn. 320; Gillespie v. Moon, 2 John. Ch. 585 ; Bryce v. Ins. Co., 55 N. Y. 240; Moran v. McLarty, 75 N. Y. 25 ; Whittemore v. Farrington, 76 N. Y. 452; Hay v. Ins. Co., 77 N. Y. 235 ; Rowley v. Flannelly, 30 N. J. Eq. 612; Edmund's App., 59 Penn. St. 220; Ford v. Joyce, 78 N. Y. 618 ; Kostenbader v. Peters, 80 Penn. St. 438 ; Mays v. Dwight, 82 Penn. St. 462; Kearney v. Sarcer, 37 Md. 264; McDonnell v. Milholland, 48 Md. 540; Weidenbusch v. Hartenstein, 12 W. Va. 760 ; Chapman v. Hurd, 67 111. 234 ; Wilson v. Hoecker, 85 111. 349 ; Peck v. Archart, 95 111. 113; Nelson v. Davis, 40 Ind. 3,66 ; Cain v. Hunt, 41 Ind. 466 ; New v. Wamback, 42 Ind. 456; Hea-venridge v. Mondy, 49 Ind. 434 ; Rogers v. Odell, 36 Mich. 411; Van Dusen v. Parley, 40 Iowa, 70 ; Strayer v. Stone, 47 Iowa, 333; Hervey v. Savery, 48 Iowa, 313 ; Lake v. Meacham, 13 Wis.

355 ; Fowler v. Adams, 13 Wis. 458; Scott v. Webster, 50 Wis. 53 ; Lavassar v. Washburne, 50 Wis. 200 ; Yocum v. Foreman, 14 Bush, 494; Ferguson v. Haas, 64 N. C. 772; Wyche v. Green, 11 Ga. 159 ; Hamilton v. Conyers, 28 Ga. 276; Alston v. Wingfield, 53 Ga. 18; Muller v. Rhuman, 62 Ga. 332; Clopton v. Martin, 11 Ala. 187 ; Exchange Bk. v. Russell, 50 Mo. 531; Murray v. Dake, 46 Cal. 644; Fitz v. Bynum, 55 Cal. 459; Remillard v. Prescott, 8 Oregon, 37 ; and cases cited Bispham's Eq. sec 469; Wh. on Ev. sec 1019 et seq.

In De Jarnatt v. Cooper, Sup. Ct. Cal. 1881, 13 Cent. L. J. 251, the rule is put as follows : "Of the jurisdiction of a court of equity to reform a mortgage, deed, or other instrument of writing, on the ground of mistake, there can be, at this day, no question. Qui-vey v. Baker, 37 Cal. 465. But to authorize the exercise of such jurisdiction, there must have been a mutual mistake as to the contents of the instrument to be reformed, or else mistake on one part and fraud upon the other. Whittemore v. Farrington, 76 N. Y. 452; Paine v. Jones, 75 Id. 593, and Bryce v. Lorrillard Ins. Co., 55 Id. 240."

4 Shelburne v. Inchiquin, 1 Bro. Ch. 347.

Judge Story:1 "If by this language his lordship only meant that the mistake should be made out by evidence clear of all reasonable doubt, its accuracy need not be questioned ; but if he meant that it should be in its nature or degree incapable of refutation, so as to be beyond any doubt and beyond controversy, the language is too general."2 The proper test is, that the error should be proved beyond reasonable doubt.3