concurred in this opinion.
Weight, J. [After stating the facts.]—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 *67Equity, 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 modi-fied 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. United Ins.-Co., 17 Johns. 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 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 nor consideration paid. It was after the deed, bond and mortgage were executed and delivered, and under them that the money was paid and possession taken. The court was asked in this 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, Ch. J., and Emott, J., concurred in this opinion.
Rosekrans, Marvin, and H. R. Seeden, JJ., although of opinion that mutual mistake or fraud must exist, concurred in affirming the judgment on the ground .that one or the other must- have, existed in this case whether expressly found or not.
Judgment affirmed, with costs.