The action was to have the defendant's bond and mortgage reformed so as to conform to a parol contract between the parties, in pursuance of which it was alleged they were given. The bond and mortgage were to secure the payment of $3000, (a part of the purchase money of the plaintiff's farm,) in ten annual installments of $300 each. As drawn, interest was to be paid annually on the different installments; but there was no provision for the payment of the interest on the whole principal remaining unpaid, at the time of the payment of such annual installments. In the latter particular the reformation or correction of the bond and mortgage were asked for. The pleadings admitted a parol contract between the plaintiff and defendant, for the sale of the farm of the plaintiff, for the price of $4600, of which sum $3000 was to be paid in ten annual installments of $300 each; the first payment to be made on the 1st of December, 1859, and the remaining payments on the 1st of December of each year thereafter; and which sum of $3000 was to be secured by the defendant's bond and mortgage on the premises. The complaint alleged the contract to have been, that the plaintiff was to have interest annually on the whole sum of $3000; whereas the defendant, in his answer, averred that that sum was made payable in ten annual *Page 316 payments of $300 each, with interest on such annual payments. The judge who tried the cause found only the single fact, viz. that there was a mistake on the part of the plaintiff as to the interest he was to receive by the bond and mortgage; and decided that as matter of law, he was entitled to have his mistake corrected, and the bond and mortgage amended or modified, so that he should recover annual interest on the whole sum unpaid, and directed a judgment accordingly.
We can only review the case upon the pleadings and facts found by the judge; and the question is, whether in a case where a contract between parties provides for the performance of a particular act by them, such contract is entitled to be reformed, in equity, because there has been a mistake on the part of one of the contracting parties, as to its terms, when such mistake is not occasioned by any fraud practiced by the other party.
I suppose the rule to be, that when there is a mistake on one side, (and not a mutual mistake,) it may be a ground for rescinding a contract, or for refusing to enforce its specific performance, but not a ground for altering its terms. (Adams' Equity, 171.) A mistake by the plaintiff when he made the contract, as to the interest he was to receive on the bond and mortgage, would not entitle him to have the contract so modified as to conform to his mistaken impression, though it might be a reason for rescinding the contract on the ground that the minds of the parties never met in making it. In Lyman v. UnitedInsurance Co., (17 John. R. 375,) Chief Justice SPENCER lays down the true rule of law to govern the case, (whether the mistake found relates to the bargain or to the taking of the bond and mortgage,) that "before a written contract can be amended or altered on the pretense of mistake, the proof must be entirely clear that that mistake has occurred; and secondly, that the amendment sought would conform the contract to the intention of both parties."
If we were to look, however, in this case, beyond the findings *Page 317 of fact by the court, it is clear that the deed, bond and mortgage constituted the true contract, and that all previous negotiations were merged in them. It would be a violation of the plainest elementary principles to permit a party who has entered into a written contract, to have the written contract altered so as to conform to his understanding of a previous negotiation, when the opposite party understood it differently, and as it was set forth in the written contract. The parol bargain was void by the statute of frauds; neither possession being taken under it or consideration paid. It was after the deed, bond and mortgage were executed and delivered, and under them the money was paid and possession taken. The court was asked in the case not only to enforce an agreement void by the statute, but one that the parties did not understand alike.
The judgment of the Supreme Court should be reversed and a new trial ordered, with costs to abide the event.
DENIO, Chief Justice, and EMOTT, J. were also for reversal. MARVIN, J., while concurring with WRIGHT, J. in his dissenting opinion, as to the law, was for affirmance on the construction which he (Marvin) gave to the judge's finding of facts; and finally the rule for judgment in favor of the plaintiff was construed as a finding of the necessary facts, viz. fraud or a mistake of fact on the part of the defendant. And the judgment of affirmance went upon that theory.
Judgment affirmed. *Page 318