To obtain rectification, there must be a common mistake.

Cases where rectification with the alternative, at the defendant's option, of rescission, has been ordered on the ground of unilateral mistake. Garrard v. Frankel.

(x) Pp. 700 sq.

(y) Above, pp. 700, 703.

(z) Above, p. 667.

(a) Here it may be noted that, if several persons agree generally upon some act in the law to be embodied in a written instrument and one of them undertake to prepare the instrument on behalf of all, it is his duty to prepare what is in all respects a proper instrument, and if the instrument prepared fall short of this, but be executed by the others in the belief that it was an instrument proper to effect their intention, it may be rectified at their suit;

Corley v. Stafford, 1 De G-. & J. 228 ; Clark v. Girdwood, 7 Ch. D. 9; Loeesy v. Smith, 15 Ch. D. 655; cf. Tucker v. Bennett, 38 Ch. D. 1.

(b) Above, p. 668.

(c) Exeter v. Exeter, 3 My. & Cr. 321; Walsh v. Trevunnion, 16 Sim. 178; Rooke v. Kensington, 2 K. & J. 753, 763, 764; Fowler v. Fowler, 4 De G. & J. 250, 264, 265, 273; Sells v. Sells, 1 Dr. & Sm. 42; Thompson v. Whitmore, 1 J. & H. 268; Bradford v. Momney, 30 Beav. 431, 438; May v. Platt, 1900, 1 Ch. 616.

{d) 30 Beav. 445.

Harris v. Pepperell.

(e) The defendant was a lady.

(f) L. R. 5 Eq. 1.

Bloomer v. Spittle.

Paget v. Marshall.

[g) It is submitted that this statement is far too wide, and in the face of the decision in Tamplin v. James, 15 Ch. D. 215, cannot now be upheld; see above, pp. 692, 693, and n. (p).

(h) L. R. 13 Eq. 427.

(i) 28 Ch. D. 255.

These cases have met with adverse criticism. Thus the learned editors of Dart on Vendors and Purchasers remarked (l): "It is difficult to understand the ground of these decisions. Either there has been originally a contract, in which case the Court cannot make a new one, or there has been no contract, in which case neither at law nor in equity is there anything to enforce." And in May v. Platt (m), Farwell, J., expressed his concurrence in this comment, and delivered the further opinion that in the cases so criticised, the judges who decided them shrank from stigmatising the defendants' conduct as fraud, but treated it as equivalent to fraud, and that, in the absence of fraud, they would have had no jurisdiction to grant the relief they did. In May v. Platt (n), the defendant apparently agreed in writing to sell to the plaintiff certain leasehold land including by the defendant's mistake a plot which he had already parted with. A conveyance was executed in accordance with this agreement, the defendant assigning all the land described therein, including this plot, and entering into the statutory covenants for title. On discovery of the defendant's want of title, the plaintiff sued him for breach of these covenants. The defendant alleged common mistake and alternatively unilateral mistake and counter-claimed for rectification of the conveyance. His case was that the plaintiff had notice that he did not intend to sell the plot parted with. Farwell, J., gave judgment for the plaintiff both in his action and upon the counterclaim ; he held that unilateral mistake was not sufficient to support a claim for rectification; and he rejected the evidence that the plaintiff had notice of the intention not to sell the plot upon the ground that the defendant's counter-claim for rectification of a written instrument carrying out an antecedent contract in writing was equivalent to a claim made by a plaintiff for specific performance of that written contract with a parol variation, and that it was established by authority that such a claim could not prevail. As we have before pointed out (o), neither the criticism of Sir Edward Fry upon the rule so laid down, nor the case of Olley v. Fisher (p), was cited. And it is submitted that in this respect Mr. Justice Farwell's decision was wrong; though he was right to refuse rectification for unilateral mistake (q).

Criticism of the above-mentioned cases.

May v. Platt.

(k) It is very significant that in this case the defendant accepted the rectification.

(I) 2 Dart, V. & P. 839, 6th ed.

This criticism does not occur in the 5th ed., vol. ii. 744.

(m) 1900, 1 Ch. 616, 618, 623.

(n) 1900, 1 Ch. 616.

Thus the decisions are conflicting, and the law is in a most unsatisfactory condition. And it does not appear that the dilemma put by the editors of Dart and crowned with Mr. Justice Farwell's approval, that there must either be an antecedent contract or not, is sufficient to remove all difficulties. It seems that the evidence offered in support of a claim for rectification of a written instrument may disclose the existence of anyone of the following states of things: - (1) An antecedent contract founded on the parties' real assent and at variance with the terms of the written instrument. In this case it is plain that the plaintiff has established his title to relief. (2) An antecedent contract, which the plaintiff alleges that he made by mistake, but which bound him by estoppel at law (r), followed by an instrument containing or carrying out such contract, the defendant contending that both the contract and the subsequent writing expressed his true intention. This was what occurred in the cases of Paget v. Marshall (s) and May v. Platt (t). Now the whole burthen of proof is on the plaintiff claiming rectification (u), and if in such circumstances he fail to prove that the contract and subsequent writing did not express the defendant's true intention, it is submitted that his claim for rectification ought to be rejected. He himself manifested an intention in accordance with that expressed and carried out. What equity then has he to be relieved against the writing binding him at law, if he cannot show that the defendant was equally in error? On the other hand, if the plaintiff can by extrinsic evidence prove a mistake common to both parties and occurring in the contract as well as the subsequent writing, it is questionable whether this evidence ought to be rejected. On principle, the better opinion seems to be that there is no objection to combining a claim for rectification of a written agreement with a claim for its specific performance (x). But on what ground can such an order as was made in Paget v. Marshall (y) be supported? If the Court gave any credence to the defendant's story, why should he have been put to the alternative of rectification or rescission? As to rectification, the plaintiff had not discharged the burthen of proof; and as to rescission, if the contract had not been completed, the plaintiff's mistake would have been no ground in equity for his obtaining the rescission of the contract (z), although it might have availed him, coupled with the plea of hardship, as a defence to specific performance (a). If on the other hand the Court believed in the truth of the plaintiff's allegations, why should he have had to submit to the chance of the defendant's electing for rescission? If there were fraud on the part of the defendant, the election should, it is submitted, have been offered to the plaintiff either to treat the contract as void or to hold the defendant to its performance with rectification (b). The truth is that in Paget v. Marshall (c), as in the cases which the judge there professed to follow (d), the Court attempted to give an equitable judgment on the hypothesis that both stories were true, the plaintiff's allegation of fraud equally with the defendant's assertion of innocence. (3) There may be disclosed an antecedent contract, into which the defendant alleges that he entered by mistake, but which would estop him from proving the mistake at law (e), followed by a written instrument embodying or carrying out what the defendant alleges to have been his real intention and the parties' true agreement. This is the case of Bloomer v. Spittle (f). Here again it seems that the whole burthen of proof is on the plaintiff; it does not appear to be really shifted by his production of the antecedent contract; he is still bound to show that the subsequent instrument is not in accordance with the real intention of all parties; and if the defendant give evidence in reply showing prima facie that the parties abandoned the intention expressed in the antecedent contract as not being their real intention and determined to execute the subsequent instrument according to the terms therein contained, or even showing merely that the defendant entered into the antecedent contract by mistake and that the subsequent instrument expressed his own true intention and the plaintiff's manifested intention, then, it is submitted, the onus lies on the plaintiff of disproving this and showing that the true intention of all was that the subsequent instrument should accord with the antecedent contract (g). If he fail in this, he has not made good his claim to rectification; if he succeed, he has; and if the defence were dishonest, he ought to succeed. There seems to be no place for the alternative relief granted in Bloomer v. Spittle (//), except on the supposition that the plaintiff's claim was both adequately supported and insufficiently proved, and the defence at once dishonest and respectable. (4) There may be disclosed an apparent antecedent contract with regard to which there was no real assent of the parties and no estoppel from putting this in evidence. Such, it is submitted, were the cases of Garrard v. Frankel(i), as treated by Lord Romilly, and Harris v. Pepperell (k). If, as held by Lord Romilly, the memorandum of the antecedent agreement proved in Garrard v. Franhel were such that its statements as to the amount of the proposed rent were contradictory on the face of it (l), then the agreement was void for uncertainty; and in that case, if it were shown, as the Court found, that the lease executed carried out the defendant's intention and what she really and in good faith believed to be the plaintiff's intention, the plaintiff had failed to prove an antecedent agreement at variance with the terms of the lease, and his claim for rectification should have been rejected. "Whilst if it were established that the defendant, knowing of the plaintiff's mistake as to the rent named in the lease, was minded wrongfully to take advantage of it, the option of rectification or rescission should have been given to him and not to her. In Harris v. Pepperell, it appears that the antecedent agreement in writing to buy "two houses at Tottenham" was either void for uncertainty (m) or contained such a latent ambiguity as allowed of the admission of parol evidence to explain the parties' real intention (n). In the latter case, if the parties' minds were not at one as to the property sold, the contract was equally void (o). Consequently, the plaintiff could not substantiate his claim for rectification without disproving the truth of the defendant's assertion that the conveyance was in accordance with his intention. If the judge believed the defendant, he ought to have given judgment in his favour. If he considered that the defendant was wrongfully seeking to take advantage of the plaintiff's mistake, the option of rectification or rescission should have been the plaintiff's. (5) It may be shown that the defendant knew of the plaintiff's mistake, and yet accepted his offer according to the literal terms thereof, well knowing that the plaintiff would believe him to be accepting the offer which the plaintiff supposed that he had made and not that which he had made. Such a state of mind would certainly be fraudulent; the defendant would have been wrongfully attempting to take advantage of the other's mistake. The cases above mentioned (p), especially Garrard v. Frankel (q) and Paget v. Marshall (r), may all serve for examples of this state of things, if we assume that the fraudulent intention so strongly suspected by the Court did in truth exist. If, however, the defendant's fraud be proved, it is submitted that the plaintiff has established his claim for rectification. The defendant's fraudulent acceptance of his offer left two courses open to him. He might treat the contract as void for want of the parties' true consent; or he might hold the defendant to his acceptance of the offer according to the terms which he (the plaintiff) really intended to put, and which the defendant knew that he believed to be accepted (t). And by suing for rectification the plaintiff has elected to affirm the contract.