*475Denied December 28, 1915.
On Petition for Rehearing.
(153 Pac. 488.)
Mr. Justice Burnettdelivered the opinion of the court.
6. The plaintiff has filed a petition for rehearing in which he restates with ability and zeal the arguments pressed upon our attention when the case was heard on appeal. Its incongruity is made manifest when we remember that on March 10,1911, when the parties made the instrument drawn in question, they were endeavoring to reduce to writing the contract of sale orally made in the next preceding January, while the present litigation is an attempt to recast the agreement according to what had been paid and what remained unpaid by the defendant and compel him to perform the new contract. The utmost a chancellor can do in the way of correcting a mistake is to state the agreement in the terms stipulated as of the date when the original was made. He cannot make a new contract taking into consideration payments or other part performance.
7, 8. Another principle equally plain is that, while in a properly stated case equity will relieve a party from a convention into which he has been inveigled by fraud, it will never construct a new agreement upon such a basis. As pointed out in the former opinion, whether in the interim between January and March the defendant had or had not paid some or all of the accounts due from the plaintiff could not affect the terms of the original transaction in the former month which the parties subsequently attempted to reduce to writing. The plaintiff had in possession at all times all the *476original data upon which, the agreement was based for the transfer of the business, and it was his duty as an independent contracting party to see that the writing correctly stated the terms of the contract; for, under ■ such circumstances, courts cannot make or unmake agreements. The complaint fails to show mutuality of mistake so essential to the exercise of that branch of equity jurisprudence. It presents no allegation justifying a rescission of the sale on the ground of fraud. Finally, under the guise of correcting a mistake, it attempts to frame a new contract materially different in terms from even what the plaintiff says was the original agreement made in January. For all these reasons the plaintiff has not stated a case for equitable relief. Something is said in the petition about an error in the opinion in statement of an allegation of the complaint. Confessedly the opinion on that point' conformed to the printed abstract upon which we heard the cause and to which the plaintiff did not object. It must be admitted that, if the abstract had shown the complaint, as plaintiff’s counsel says it was amended, by interlineation, the comment referred to would not have appeared in the decision; but, as it was not necessary to the- result, it requires no further notice.
The petition for rehearing is denied.
Reversed. Suit Dismissed. Rehearing Denied.