Sec 205

It is a defence, as between parties with notice, that the transaction expressed has a materially different legal character from that intended. Hence, when a loan was intended, it is admissible, as between the parties to show, in the Roman law, that the words used were meant, merely to express a loan, though on their face they express a gift.8 With us we have innumerable cases to the effect that deeds in fee may be shown to have been merely conveyances in trust, and that even negotiable paper may be shown to be merely accommodation paper, on which a party indorsing may not be liable to an indorsee with notice.1 And generally, while an essential bilateral error as to the nature of a transaction avoids a contract based on it,2 a mutual error of mere verbal expression will be ground for proceedings for rectification. But to give an error as to the character of a contract the effect of thus superseding it, the error must be common to both parties. It is not want of consent that vacates, as when the parties differ as to essential features of the contract. Here the parties do not differ. They agree, but they agree to something different from what the written document expresses. And courts of equity, as between the parties, will refuse to permit a document to be enforced when there is this common mistake of expression, or will direct it, if this be asked, to be rectified.3 And a mistake of fact, in signing a wrong document, may be ground for relief.4

Patent error cannot be corrected by extrinsic proof, unless mutual mistake be proved.

Bilateral error as to the nature of the transaction may be corrected.

1 Wh. on Ev. sec 957.

2 Wilson v. Wilson, 5 H. L. C. 40; De la Touche in re, L. R. 10 Eq. 599; Marion v. Faxon, 20 Conn. 486. See for other cases infra, sec 632-4, 661 et seq.

3 Langdon v. Goole, 3 Lev. 21; Young v. Smith, L. R. 1 Ex. 180 ; Burnside v. Wayman, 49 Mo. 356; Exch. Bk. v. Russell, 50 Mo. 531. As to signing blank paper, see supra, sec 185 ; as to filling blanks, see infra, sec 697-700.

4 Infra, sec 210, 634 et seq.; Brown v. Gilman, 13 Mass. 158 ; Mitchell v. Kintzer, 5 Barr, 216; though see Crawford v. Spencer, 8 Cush. 418.

5 Lynam v. Califer, 64 N. C. 572. See infra, sec 634, 661 et seq.

6 Steph. Ev. art. 91 (citing Shore v. Wilson, 9 C. & F. 365) ; Wh. on Ev. sec 1006; Leake, 2d ed. 320; Saunder-son v. Piper, 5 Bing. N. C. 425 ; and infra, sec 205, 634, 661.

7 Infra, sec 205.

8 Savigny, op. cit. sec 136, citing L. 3, sec 1, de O. et A. (44, 7). See Hill v. Wilson, L. R. 8 Ch. 888.

1 See Wh. on Ev. sec 1031 et seq., for cases.

2 Cox v. Prentice, 3 M. & S. 344; Miles v. Stevens, 3 Barr, 21; supra, sec 177.

3 Sug. V. & P. 8th Am. ed. 262; Leake, 2d ed. 322; Kerr, Fraud and Mistake, 423 ; Stephens v. Ins. Co., L. R. 8 C. P. 18; Traders' Bank v. Ins. Co., 62 Me. 519 ; Barry v. Harris, 49 Vt. 392; Paige v. Sherman, 6 Gray, 511; Bryce v. Ins. Co., 55 N. Y. 240; Kilmer v. Smith, 77 N. Y. 226 ; Wheeler v. Kirtland, 23 N. J. Eq. 13 ; Doniol v. Ins. Co., 34 N. J. Eq. 30 ; Gower v. Sterner, 2 Whart. 75 ; Huss v. Morris, 63 Penn. St. 367; Whelen's App., 70 Penn. St. 410 ; Kostenbader v. Peters, 80 Penn. St. 438; Mcintosh v. Saunders, 68 111. 128 ; Milmine v. Burnham, 76 111. 362; Keith v. Ins. Co., 52 111. 518; Wilson v. Hoecker, 85 111. 349; Merc. Ins. Co. v. Jaynes, 87 111. 199 ; Schoonover v. Dougherty, 65 Ind. 463 ; Trammel v. Chipman, 74 Ind. 474; Larsen v. Burke, 39 Iowa, 703 ; Van Dusen v. Parley, 40 Iowa, 70; Menomonee v. Langworthy, 18 Wis. 444; Burke v. Anderson, 40 Ga. 535 ; Bid-well v. Brown, 48 Ga. 179; Hall v. Hall, 43 Ala. 488 ; Glover v. McGilvray, 63 Ala. 508 ; Leggett v. Buckhalter, 30 Miss. 421 ; Wood v. Steamboat, 19 Mo. 529 ; Hook v. Craighead, 32 Mo. 405 ; Tesson v. Ins. Co., 40 Mo. 33 ; Exchange Bank v. Russell, 50 Mo. 531 ; Conaway v. Gore, 24 Kan. 389; Gammage v. Moore, 42 Tex. 170. That a court in a bankrupt procedure will rectify a contract and apply it on the above principles, see Boulton in re, L. R. 4 C. D. 241. In Rudge v. Bowman, L. R. 3 Q. B. 689, it was held that where a contract was made for the supply of goods according to a sample, which sample contained a latent defect unknown to the parties, the contract was to be construed as intended by the parties, according to the sample supposed to be sound. Leake, 2d ed. 343. See infra, sec 225, 565.

4 Briggs v. Ewart, 51 Mo. 249 ; Wright v. Macpike, 70 Mo. 175, and cases cited supra, sec 185.