I agree with Mr. Justice Page that the facts alleged are sufficient to authorize the court to reform the contract. In Forstall v. The Alberto (24 Fed. Rep. 379) the court lays down this rule: “When the terms of an offer by cablegram were ambiguous, and misunderstood by the parties receiving and accepting the same, to the knowledge of the party making the offer, it was the duty of the latter to have at once given notice by cablegram of the misunderstanding, and to protest against the acceptance as made, and their failure to do so estopped them from denying the contract as made from such acceptance of their offer. They were silent when equity required them to speak.”
The case at bar presents even stronger ground for reformation, because the mistake of the defendant was due to the misrepresentation and fraud of the plaintiff. It is contended that this misrepresentation and fraud of the plaintiff, while ground for rescission of the contract, is not ground for reformation. In 34 Cyc. 920, the text in part reads: “ The other ground which will warrant the reformation of an instrument *176is where there is ignorance or mistake on one side, and fraud or inequitable conduct on the other.” To this proposition many cases are cited. In Welles v. Yates (44 N. Y. 525) it is held: “ A court of equity will not interfere to reform a' contract, on the ground of mistake, unless it is mutual. But mistake on the one side and fraud on the other will authorize a reformation.”
Further: “ Under a complaint alleging the facts upon which relief is claimed, and that, by mistake of the plaintiff, a deed does not contain a reservation in favor of the plaintiff, to which, under the prior contract between the parties, he was entitled, and that defendant well knew all of the facts, but not charging fraud in words, relief may be given on the ground of fraud on the part of the defendant.”
Again, in 34 Cyc. 922, the rule is stated: " Hence mistake on one side and misrepresentation, whether wilful or accidental, on the other is ground for reformation when the party deceived has relied on the misrepresentations of the party seeking to bind him, and when the misrepresentation was of a material fact in which the party deceived placed confidence.”
There is more doubt as to. plaintiff’s contention that the words “face value” are unequivocal, and that the defendant was not authorized to rely upon the plaintiff’s misrepresentation as to what was their import. While to one trained in business law this probably would be true, to one not acquainted with commercial expressions I am satisfied the expression is not so clear as to lead the court to refuse reformation to express the real intent of the parties when the words were misused through the actual fraudulent misrepresentation of the plaintiff.
I, therefore, concur for affirmance.
Laughlin, J., concurred.