The facts stated and proved in this case are, that the plaintiff arranged for sale and sold, through the agency of Alfred Smith, a well known real estate agent in Newport, a portion of a certain farm belonging to the plaintiff, called the Ochre Point Farm, in said Newport. That Smith, who had the sole direction and control of said sale, in the summer of 1862, employed a surveyor by the name of Samuel S. Minot, reputed for his skill, to survey the portion of said farm to be sold into lots, and measure and plot the same, to be sold by one Swinburn, by auction. That amongst the lots so measured and plotted was lot No. 1, on the plot of said lots, set down as containing 43,918 feet to high water, by mistake of said surveyor, when, in truth and in fact, said lot contained, in its true area to high water, 55,680 feet. That said lot was sold by auction, through mistake, to the defendant, and by him bought, as containing said area of 43,918 feet, instead of its true area of 55,680 feet, at five and one-quarter cents per square foot, and upon receiving a conveyance from the plaintiff of said lot, the defendant paid his said agent, Smith, the sum of $755.69, and delivered to his a mortgage for the payment of a note of $1,550, in three years, with interest, the area and *Page 260 price of said lot being adjusted by and according to said mistake. The bill prays that the sale, made as above, by mutual mistake as to the area, may be rescinded; the consideration being returned to the defendant, and the land reconveyed by him to the plaintiff.
We are clearly of opinion that this equity demanded of the defendant is due, under the facts, to the plaintiff, there being no doubt that the sale and conveyance were made under a mutual mistake, as to the area sold, and the price justly to be computed as the price of the lot. No fault or neglect in the matter is fairly imputable to the plaintiff, who employed an agent to arrange the sale of his farm, of skill and good repute. This agent, for the purpose of surveying, measuring and plotting the lots to be sold, including lot No. 1, sold under the above mistake to the defendant, employed a skilful civil engineer, who, in performing this duty, fell into the mistake above stated, which has caused the parties to contract and execute their contract of sale, contrary to the design and against right, as due to and from both parties. The sale, like that in Leslie v.Thompson, 9 Hare, 268, was made according to the report of a surveyor, which was incorrect, and the contract was, as in that case, entered into under a mistaken conception of the amount of the property comprised in the particulars embraced in the report. There is no pretence, under the facts proved, that the plaintiff designed or expected to sell lot No. 1 in the mass or lump, or that the defendant designed or expected to buy it in that mode. The designation of the number of feet in the tract, with the price per foot at which it was sold, negatives any such presumption. In the exercise of its jurisdiction over the subject of such a mistake, the Court will require, what it finds in this case, full and satisfactory proof of the mistake, and will be of little value, if it can suppress only positive frauds, and leave a material mistake, like the one in this case, innocently made, to work an intolerable mischief, contrary to the intention of the parties. As we have already had occasion to repeat, in the language of Judge Story, "It would be to allow an act originating in innocence to operate ultimately as a fraud, by enabling the party who receives the benefit of the mistake to resist the claims of justice, under the shelter of a rule *Page 261 framed to promote it." 1 Story's Eq. Jurisp. 15, 155, 156;Allen v. Browne, 6 R.I. Rep. 396-7.
According to the well settled principles of equity jurisprudence applicable to such a subject, we must rescind the contract and sale entered into and arranged by mistake in a substantial particular, and which, if suffered to remain, will work a fraud upon the plaintiff, unless the same be conformed to the truth and fact in the particular complained of. Let a decree be entered up rescinding the above sale as entered into by mutual mistake, the plaintiff returning the consideration by him received from the defendant, and receiving from him a full release in consideration thereof and of all loss and expense incurred by him from the plaintiff in said lot No 1, but let the title of the defendant in No. 1 remain without such rescission, provided he shall forthwith pay as the master may report, the cash sum due, and deliver the additional note secured by mortgage upon the property sold to the defendant, calculating the amount of such additional sum, adjusting the same and the amount of such additional note and mortgage to the true price, free from the above mistake; let Francis B. Peckham, Jr. Esq. be appointed a master in this case to compute the above amounts, and fix the time for adjusting the payment of the same between the parties, as he shall find the facts in this case may require, and report upon the same to the Court.
The mistake made in the contract and conveyance being apparent, and it being proved by Alfred Smith that, about a year after the contract and conveyance, it was discovered, by him, upon the suggestion of William B. Lawrence, Jr., and that having it confirmed by Mr. Minot, the surveyor, he informed the defendant of it, which information is admitted by the defendant to have been given to him, and the defendant having thereupon promised to correct it, and it appearing, notwithstanding, that this has never been done by him, our decree against him must be with costs.
AFTER the delivery of this opinion, and after notice had been given by the complainant, that he intended applying to the Court *Page 262 for a modification of its order, by making the rescission unconditional, the complainant learned, that while the case was under advisement by the Court, a communication in writing was made to one or more of the Judges, by the defendant's counsel, without the consent or knowledge of either the complainant or his solicitor. The bill of the complainant contained an express waiver of the defendant's oath to his answer, and he accordingly had filed an answer not under oath. Both the defendant and his counsel, it would seem, had, throughout the trial, assumed that the answer, though not under oath, was entitled to consideration as evidence, while the complainant and his counsel regarded it but as a pleading. The complainant, in his closing argument, indicated his views on this subject, by saying, "Did even the answer purport a denial of the mistake, unsupported, as it is, by any testimony, such denial could not avail the defendant, as there is an express waiver of an answer under oath. The answer is not sworn to; but if it had been, it would, under the rules of the Court, have only been regarded as a pleading." And again, he said, "It might be sufficient to remind the court, that an averment in an unsworn answer, unsupported by any evidence, can, in no possible sense, be evidence in a suit." The defendant's counsel thereupon addressed to the Court the communication above referred to, in which they said: "We deem it proper, on behalf of our client, to call the attention of the Court to a statement appearing on page fifth of the complainant's closing argument, last paragraph, where the defendant's answer in this suit is called `an unsworn answer.'" And then, after quoting from the bill the clause waiving an oath to the defendant's answer, they added: "It would hardly be respectful to this Court to cite authorities upon subjects so elementary as the effect of an answer in equity, how far an answer is evidence, and how a Court will treat it. The matter of the answer aforesaid is incidentally referred to in the complainant's closing argument, page four, top paragraph."
Of this irregularity, or breach of professional etiquette, complaint was made to the Court at its October session, 1865, in Providence, when, for satisfactory reasons shown, or by consent, *Page 263 it was ordered, That all proceedings in the suit, subsequent to setting down the same for argument, be deemed null and void, and that the cause be placed on the calendar for the March term, at Newport, and then be heard in its order.
Subsequently the defendant filed in the clerk's office the following motion: —
"SUPREME COURT.
"Newport, ss. In Equity.
"W. BEACH LAWRENCE v. RICHARD M. STAIGG.
"The defendant in the above entitled suit moves the Court that the copy of his answer to the bill of complaint, duly certified by the clerk of this Court to be a correct copy of the original, which copy, accompanied by his affidavit verifying the same, sworn to before Charles B.G. Adams, a commissioner for Rhode Island, residing in the city of Boston, is filed with this motion, may be taken and received as and for his answer in said suit, duly verified by his oath.
"And he states, as his reason for this motion, the following: That, by the express language of the bill of complaint, the necessity of an answer under oath was directly waived. That relying on said waiver and believing the same to have been made in good faith, the defendant filed his answer in said suit, signing but not swearing to the same. That subsequently the said complainant has sought to take advantage, notwithstanding his aforesaid express waiver, of the fact that the said answer has not been made under oath, and seems to seek to deprive the defendant of the full benefit of his answer in said suit.
"Therefore he makes this motion, being duly sworn to the truth of said answer."
At this term (March, 1866) the cause was again submitted to the Court, and with it a motion of the complainant, that the motion aforesaid of the defendant be stricken from the files of the Court for scandal, with costs, to be paid by the solicitor. The counsel who, at this term, assumed charge of the cause, respectively adopting, as their own, the arguments of their predecessors, and commending them to the consideration of the *Page 264 Court, were, respectively, further heard upon the merits of the cause, as well as upon the questions involved in the complainant's motion.
W.B. Lawrence, pro se ipso: —
I. The defendant's motion, charging the plaintiff with improper motives in waiving the defendant's oath, should be stricken off the files of the Court for scandal, with costs to be paid by the solicitor. 1 Barbour's Chancery Practice, 574;Powell v. Kane, 5 Paige's Ch. Rep. 267. The scandal of the defendant's motion is put beyond all pretext of apology, by the fact, that the prayer in the bill which is complained of is in accordance with the most approved precedents, and in strict conformity with equity practice. 1 Barbour's Chancery Practice, 36; 1 Hoffman's Chancery Practice, 234, 3d ed.
II. The motion is frivolous and impertinent. The Court will never, in any case, allow pleadings to be taken off the file, on the application on the part of the defendant, for the purpose of enabling him to correct a mistake in form, where the plaintiff can be at all prejudiced by it. 1 Daniels' Chancery Practice, 786. It is not within any of the provisions, under which, by the 44th rule of this Court, 4 Rhode Island Reports, 571, permission to amend may be granted by the court after replication. The principle that no change can be made in the defendant's answer, unless the plaintiff can be put in the same situation as he would have been if the proposed answer had been originally filed, has been fully recognized by this Court. Tillinghast, Receiver, c. v. Champlin, 4 Rhode Island Reports, 135. If the plaintiff had no right to waive the answer under oath, there was no obligation on the part of the defendant, to omit his oath in the answer; and if he had such right, it was wholly immaterial whether the answer was sworn or not.
III. The object of calling for an answer is to serve the purposes of the plaintiff, not of the defendant. 3 Bland's Chancery Rep. 14. Therefore, though in the English Court of Chancery, where an order is required to put in an answer without oath, though it cannot be obtained without the plaintiff's consent, when asked for by the defendant, when it is *Page 265 applied for on the part of the plaintiff, the defendant's consent is not required. 1 Daniel's Practice, 750 (ed. 1865). Since the law making parties in interest witnesses in suits in law and equity, no motive exists for requiring the oath of the defendant to answers to bills in equity. See Rev. Stat. ch. 187, § 34, p. 454.
IV. That the plaintiff may, at his option, when the bill is for relief, not discovery, waive the defendant's oath, and that, in such case, the answer will only be regarded as a pleading, is now established in every State of the Union, it is believed, where equity proceedings, as distinguished from those at common law, are adopted. In some of the States, as in Massachusetts and Maryland, and as was the case in New York, before the distinctions between law and equity were done away with by their code, the decisions of the Courts are incorporated into the statutes, but in Massachusetts the practice of the Courts preceded, by several years, the statutory enactment. In Connecticut, New Hampshire and Illinois, whose reports have been examined, the practice would seem to rest on the decisions of the Court. Heartt v. Corning, 3 Paige, 569. In Connecticut, the practice of waiving oath and treating answer as a pleading prevailed before 1832, without any statutory provision. Pomeroy v. Manin, 2 Paine C.C. Rep. 477. In Massachusetts, the waiver was introduced into the statutes in 1855. It had been recognized, for many years, by the Court, and is to be found among the rules of 1842. See 24 Pickering, 411. The rule there declares that, "when a bill shall be filed other than for discovery only, the plaintiff may waive the necessity of the answer being made on the oath of the defendant, and, in such cases, the answer may be made without oath, and shall have no other or greater force than the bill. No exception for insufficiency can be taken to such answer." In New Hampshire, the rule of Court is the same as in Massachusetts. 1 Daniel's Chancery Practice, 749, n. The code of Maryland (§ 103 of art. 10) provides that it shall not be necessary for any defendant to make an oath to his answer, unless required by the complainant. Mehaney v. Lazier, 16 Maryland, 73. An oath to an answer may be waived in Illinois. 1 Gilman's Rep. 317. *Page 266
V. The defendant's oath, if the plaintiff had a right to waive it, would not have availed the defendant, if attached to his answer, and whether he had or had not such right, the defendant might have sworn to the answer quantum valeat.Bartlett v. Gale, 4 Paige, 503; Moore v. Hunter, 1 Gilman (Ill.) Rep. 317.
VI. The distinctions between an answer without an oath and an answer under oath have ever been recognized in equity, even in those cases in which it has been held that the permission of the Court to waive the oath was necessary. In unsworn answers, exceptions for insufficiency cannot be taken. They deprive the plaintiff of any power to compel the defendant to make them properly responsive to the bill, and the substitution of a sworn answer for an unsworn, if it is to be evidence, would require the withdrawal of all subsequent proceedings to enable the plaintiff to except to it. Hill v. Earl of Bute, 9 May, 1785; see 2 Fowler's Practice of the Court of Exchequer, in Proceedings in Equity, 10 (London, 1817). The Supreme Court of the United States adopt, as a general rule, that an answer not under oath is to be considered merely as a denial of the allegations of the big analogous to the general issue at law; so as to put the complainant to the proof of such allegations. Union Bank ofGeorgetown v. Geary, 5 Pet. 99; Law, Jurisdiction, c., of the United States Courts, p. 461, n. to rule 39, Circuit Courts in Equity; see, also, 1 Daniel's Chancery Practice, by Perkins, 746-750, n. (ed. of 1865); Story's Eq. Pleadings, by Redfield (ed. 1865), § 875, c.
VII. It is never competent for a defendant to deprive theplaintiff of the benefit of an answer put in without oath.Curling v. Marquis Townshend, 19 Vesey, 631; Chace v.Holmes, 2 Gray, 433; Bingham v. Yeomans, 10 Cush. 58. If the plaintiff is unwilling to rely upon an answer on oath to the amendments, his only remedy is to dismiss the bill and commence a new suit, in which suit he can waive an answer on oath. Burras v. Looker, 4 Paige, 227, 1 H. H.C. 234, 235; Bingham v.Yeomans, 10 Cush. 58; Chace v. Holmes, 2 Gray, 431.
VIII. The plaintiff is entitled to an absolute rescission of the contract, and a reconveyance, as prayed for in the bill of complaint. Leslie v. Thompson, 9 Hare, 268, on the authority of *Page 267 which the opinion of the Court in this case, at the August term, purported to be based. In that case, the eleventh condition of the sale provided, that "if any mistake or error should appear in the description of the property, or any error whatever appeared in the annexed particulars, such mistake or error should not annul the sale; but, except when otherwise provided for by the conditions, a compensation or equivalent should be given or taken, as the case might require, to be settled by referees." In this case, there being no previous stipulation, the bargain having failed through mutual mistake, was at an end, and unconditional rescission is the only remedy. It is not intended to assert that the Court is precluded, in all cases, from giving relief under the general prayer, though there is a special prayer, but this is not a case for so doing. The principle is, that when the plaintiff fails to make such a case as would entitle him to the specific relief claimed, but does make a case which comes within the equity of the general prayer, the Court will grant the relief which the facts show him entitled to. But no case can be found in which, where the plaintiff has made out his claim to the satisfaction of the Court, for the specific relief according to his prayer, as understood both by the plaintiff and defendant, the specific relief has been refused, and a different decree made, founded on the general prayer. 1 Daniel's Chancery Practice, 382-390 (ed. 1865).