gence to defend the action in which judgment was rendered.176 Where the complaint contains no averment showing that relief could not have been obtained on motion, it may be demurrable; but if the act appears on the record, and no demurrer be interposed, but defendant goes to trial on the merits, the objection is waived.177 § 2799. For rescission of contract on the ground of mistake. Form No. 638. [TITLE.] The plaintiff complains, and alleges: I. That on the ... ... day of ..... 18.., the defendant represented to the plaintiff that a certain piece of ground belonging to the defendant, situated at contained twenty acres. II. That the plaintiff was thereby induced to purchase the same at the price of ..... .. dollars per acre, in the belief that the said representation was true, and signed an agreement, of which a copy is hereto annexed, and marked "Exhibit A," But no deed of the same has been and made a part thereof. executed to him. IV. That the said piece of ground contained in fact only ten acres. Wherefore the plaintiff demands judgment: 1. For day of ... dollars, with interest from the 18.. 2. That the said agreement of purchase be delivered up and canceled. 2800. When action lies. It is a well-settled principle that mistakes in written instruments may be corrected in a court of equity, and it will not only go back to the original error and reform it, but will administer complete justice by correcting all subsequent mistakes which grow out of and were superinduced by the first.178 When the fraudulent representations relate to the quantity of the land, it is immaterial whether the sale is in gross or by the acre.179 176 Riddle v. Baker, 13 Cal. 295. 177 Bibend v. Kreutz, 20 Cal. 109. 178 Quivey v. Baker, 37 Cal. 464; see Humphreys v. Hurtt, 20 Hun, 398. 179 Thomas v. Beebe, 25 N. Y. 244. § 2801. Knowledge of plaintiff. Though the fact that the complainant had means of ascertaining the facts will ordinarily defeat a suit to rescind a contract on the ground of mistake merely, it will not prevent a recovery if actual fraud is shown to have been practiced upon him to induce him to make the contract.180 Fraud vitiates all contracts tainted by it, and may be set up whether a warranty was given or not.181 § 2802. Mistake of fact. A mistake of fact is a mistake not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in: 1. An unconscious ignorance or forgetfulness of a fact past or present, material to the contract; or, 2. Belief in the present existence of a thing material to the contract, which does not exist, or in the past existence of such a thing which has not existed." Mistake of foreign laws is a mistake of fact.183 182 § 2803. Mistake of law. A mistake of law constitutes a mistake, within the meaning of this article, only when it arises 180 1 Story Eq. Jur. 192, 222; Moffat v. Winslow, 7 Paige, 124; Colt v. Woolaston, 2 P. Wms. 154; Blain v. Agar, 2 Sim. 289; Bond v. Hopkins, 1 Sch. & Lef. 429; Warner v. Daniels, 1 Woodb. & M. 90; Mason v. Crosby, id. 342, 352; Tuthill v. Babcock, 2 id. 298. 181 Rentgen v. Knowrs, 1 Wash. C. C. 170; Bishop v. Sniffen, 1 Day, 156; 2 Am. Dec. 63; 4 T. R. 67; Smart v. Wolff, 1 Day, 337; Willson v. Force, 6 Johns. 110; 5 Am. Dec. 195; Gates v. Caldwell, 7 Mass. 68; Smith v. Babcock, 2 Woodb. & M. 246; Tyler v. Black, 13 How. 230. 182 Cal. Civil Code, § 1517. Where a bank has contracted with the maker to advance money to pay a note, unknown to the payee, the bank may rescind the contract at any time before actual payment is made, on the ground that its consent to the contract was given by mistake. Steinhart v. Mills, 94 Cal. 362; 28 Am. St. Rep. 132. Rescission for fraud. In order to entitle a party to rescind a contract for fraud, he must show that some damage has resulted to him therefrom. Fraud is, however, the essential thing, and while it must be coupled with loss, injury or damage, the precise amount of the damage is of secondary importance. Wainscott v. Loan Ass'n, 98 Cal. 252. In an action to rescind a partnership contract for fraudulent representations as to previous profits of the business, it is necessary to allege that the plaintiff was induced thereby to pay more for the goods than he would otherwise have done, or that the business was not profitable after the purchase, or to show that the plaintiff was in some way injured by the representations. Bailey v. Fox, 78 Cal. 389. 183 Cal. Civil Code, § 1579. from: 1. A misapprehension of the law by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law; or, 2. A misapprehension of the law by one party, of which the others are aware at the time of contracting, but which they do not rectify.184 § 2804. To reform a conveyance by mistake in the boundary. Form No. 639. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of 18.., the defendant executed and delivered to the plaintiff, under his hand and seal, a deed, of which the following is a copy [give copy of deed]. II. That the description therein given of the premises intended to be conveyed was erroneous, and in fact does not describe any premises whatever [here insert wherein the error lies], and that in order to make said deed pass any premises whatever to this plaintiff, and to make it conform to the actual intention of the parties, it is necessary that the said description should be amended so as to read as follows [here insert correct description of the premises]. III. That the plaintiff has paid to the defendant for the said premises the consideration expressed in said deed. Wherefore the plaintiff demands judgment: 1. That said deed be reformed as aforesaid. 2. For costs of this action. § 2805. Reformation of deed. A complaint in equity to have a deed, absolute on its face, reformed so as to become a deed of trust, which avers that the deed does not express the trusts and conditions upon which it was agreed the property should be transferred, but that such conditions were by the defendants fraudulently suppressed, without any statements of what acts of fraud were practiced, does not state facts sufficient to constitute a cause of action.185 Where a party brings a bill to have a conveyance, which is absolute on its face, declared a mortgage to secure an oral promise to pay a certain sum of money in gold, and to redeem, he can not redeem except on paying said sum in gold, and this not on the ground of the specific Contract Act, but because "he who seeks equity must do equity."188 Of the rules of pleading appli § 2806. Terms of a contract. cable, where a party sued for nonperformance of a contract in writing seeks to have it reformed so as to express the real intentions of the parties, see Wemple v. Stewart, 22 Barb. 154. A complaint seeking to have a written contract reformed, and for judgment thereon when reformed, states but a single cause of action.187 Where in reducing an agreement to writing, a material clause has been omitted by mistake, a party seeking to avail himself of the actual contract must obtain a reformation of the writing, either by a distinct proceeding to reform it, or by specially pleading the mistake in the action in which the contract is sought to be used, and asking its correction as independent relief. Under a pleading which simply states the terms of a contract, the introduction of a written agreement respecting the subject-matter can not be followed by oral proof of a material clause alleged to have been omitted by mistake from the writing.188 The plaintiff complains, and alleges: I. That the plaintiff and defendant, having had mutual dealings, on the ...... day of ..... 18.., came to an accounting, upon which a statement of the said account was made in writing, a copy of which is annexed as a part of this complaint, marked "Exhibit A," whereby a balance of dollars was found in favor of the defendant. II. That since the said statement of account, the plaintiff 186 Cowing v. Rogers, 34 Cal. 648. For the allegation of a complaint seeking to reform a mortgage on the ground of fraud, and for foreclosure as reformed, see DePeyster v. Hasbrouck, 11 N. Y. 582. Facts should be distinctly stated entitling the plaintif to relief Lamoreux v. Atlantic Ins. Co., 3 Duer, 680. 187 Gooding v. M'Alister, 9 How. Pr. 123. 188 Pierson v. McCahill, 21 Cal. 122. In order to have a contract reformed, the pleading should set out what the contract was as the parties made it, and why its terms happened to be left out, or how terms not agreed upon came to be inserted. Foster v. Schmeer, 15 Oreg. 363; and see Osborn v. Ketchum, 25 id. 352; Hyland v. Hyland, 19 id. 51; Meier v. Kelly, 20 id. 86. has discovered errors and false charges therein, of which he was wholly ignorant at the time of such statement. III. That in the statement of said account so settled, he is charged as follows [state items wrongfully charged, and show the error]. IV. That the following items, which ought to have been entered to his credit in said account, were by mistake wholly omitted therefrom, to-wit [specify the items, with date, amount, etc.] V. That the said account is incorrect and that the balance thereon should be dollars in favor of the plaintiff, instead of dollars in favor of the defendant. Vl. That as soon as the plaintiff discovered the said errors, to-wit, on the ........ day of .... 18.., he pointed the same out to the defendant, and then requested the defendant to correct the same, and to restate the said account correctly, but the defendant refused to do so, or to pay the plaintiff any part of said sum of .... dollars, in accordance with the stated account as corrected. Wherefore the plaintiff asks: 1. That he may be let in to prove the said errors in the stating of the said account, and that the same be corrected. 2. That judgment may be rendered against the defendant for the said balance of dollars, on said corrected account, with interest thereon from the 18.. [Annex Copy of Account:] day of § 2808. Fraudulent account. Where the board of supervisors of a county allowed an account presented for services as tax collector, and the auditor drew his warrant in favor of E. for the amount, and he assigned it to defendant M., a bona fide purchaser without notice, it was held that the county can not go into equity to cancel the warrant and enjoin its collection as against M., on the ground that the account was false and fraudulent as to some of its items, and was allowed by the board through ignorance of the facts and mistake; that the supervisors were acting within the scope of their authority, and the county can not visit upon an innocent party the consequence of their negligence.189 189 El Dorado County v. Elstner, 18 Cal. 144. As a general rule, settled accounts will not be opened on mere conflicting evidence, and if opened only errors particularly and fully alleged will be |
