Diman v. the Providence, Warren, and Bristol R.R. Company

Ames, C. J. A court of equity has no power to alter or reform an agreement made between parties, since this would be in truth a power to contract for them; but merely to correct the writing executed as evidence of the agreement, so as to make it express what the parties actually agreed to. It follows, that the mistake which it may correct in such a writing must be, as it is usually expressed, the mistake of both parties to it; that is, *135 such a mistake in the draughting of the writing, as makes it convey the intent or meaning of neither party to the contract. If the court were to reform the writing to make it accord with the intent of one party only to the agreement, who averred and proved that he signed it, as it was written, by mistake, when it exactly expressed the agreement as understood by the other party, the writing, when.so altered, would be just as far from expressing the' agreement of the parties as it was before ; and the court would have been engaged in the singular office, for a court of equity, of doing right to one party, at the expense of a precisely equal wrong to the other. Henkle v. The Royal Exchange Assurance Co. 1 Ves. Sen. 317; The Marquis of Townshend v. Stangroom, 6 Ves. 333, 334; Adams, Eq. 171. Now the parties to this contract, of subscription, which we are asked to reform so as to make it a subscription for one thousand dollars instead of two, are, as the parties to the bill indicate and suppose, the subscriber, on the one side, and the railroad company, whose capital stock he subscribed to, on the other. Francis M. Dimond, who handed the subscription-book to the complainant, and as a Mend and neighbor urged him to subscribe, so far from being a party to the complainant’s contract of subscription, in the sense of the party with whom he contracted, appears himself, about the same time, to have entered into a several contract with that same party, the railroad company, for the same amount of its stock, by writing his name on the same subscription-book directly below the name of the complainant, as a subscriber, for twenty shares of it. In other words, each thus contracted, not with the other, but with a corporation, existing, but not yet organized, to take the number of, shares of stock set opposite his name, provided responsible subscriptions to the amount of $175,000 could be obtained; and when these were obtained, and the railroad company upon the • faith of them proceeded to organize and to act, the subscription; contract of each with the company became perfect and mutually binding both upon the subscribers and the company, as the re-, spective parties to the contract. To enable us then to correct this subscription paper in the' mode requested by the complainant on the ground of mistake, *136 we must be satisfied, that by so doing we shall make it conform to the understanding of the contract by the railroad company at the time they entered into it, as well as of the complainant at the time that he subscribed it. Now there is no evidence that the company, as an organized body, or any ' officer or agent of the company appointed to represent it, had any notice whatever at the time of the organization, that this subscription was not precisely what the complainant designed it to be; nor indeed does it seem that any effectual means were taken to apprise them that it was not, until long after, when, according to a previous promise to the complainant, Francis M. Dimond addressed to the president of the company a letter under the date of December 6,1853, some nine months after the organization of the company, and received the proper reply, that the company having acted upon the subscription of the complainant, it ¡was too late to allow him to retract it. So far then is this from having been a mistake of both parties to the contract, that it is the mistake, if it may be so called, of one only; the other having been suffered to act and contract during many months upon the faith that the subscription was precisely what it was designed to be, and no diligence what- ' ever used to give notice to the contrary. If there was, as it would seem, negligence on the part of Francis M. Dimond in performing his promise to the complainant, that he would give early notice to the company of the facts concerning this, subscription as they are now claimed to be, which might have been done on the very day that the company met for organization, it was the negligence of the agent of the complainant, and he, and not the company, must bear the consequences of it. Without therefore going into the question, whether, considering, the grounds of the well-known rule of evidence, it would be proper, however competent, to alter a written contract, unambiguous in its terms, upon oral proof alone of a supposed mistake in them, and such proof consisting almost wholly in the testimony of the party applying for the alteration, we must decline to reform this subscription in the mode proposed, upon the distinct ground, that it is not competent for us thus to make it express the contract of,one party, when, by so doing, we shall *137 make it cease to express the contract which the other party fairly entered into, and so long acted -upon. But besides the power to reform a writing, so as to make it express the agreement of both parties as it was designed to do, a court of equity has also power to rescind and cancel an agreement at the request of one party, upon the ground that, without negligence, he entered into it through a mistake of facts material to the contract, when it can do so without injustice to the other party. Although relief of this character has not been specially asked of us, and indeed, the complainant has already paid half of this subscription as the condition of a former continuance of the suit at law against him by the respondents to recover the whole of it, it may not be improper for us to add, that the case of the complainant, even as he claims it to be proved, would not entitle him to this relief. There was no mistake here at all, in the sense in which a court of equity recognizes it in order to relief. The complainant, at ease in the library of his own house, after having been urged by a friend to double, or at least to renew his subscription, with his own hand, deliberately subscribes his name in the book before him, setting opposite to his name in figures, the number of shares (20), and the amount in money (§2,000), which he engages to take in the stock of this railroad. Grant that he designed, and at the time expressed the design, of renewing only his old subscription of a thousand dollars; yet it is not possible to account for his actual subscription otherwise than by supposing, either, that at the moment he had forgotten what the amount of his old subscription was, or, that he wrote this subscription with a mind so preoccupied with something else that he did not attend to what he wrote. As a witness he does not attempt to account for it; but merely states the fact, that designing one thing, he did another. Now as the complainant, so far from being weak or hallucinated, is eminent amongst us for his knowledge and employment in affairs both private and public, nothing but want of recollection or attention, which necessarily import, in such a personal act, negligence or carelessness on his part, could have permitted his hand to write what his will did not direct. When in addition to this it is considered, that notwithstanding his discovery *138 of his negligence on the same day, there seems to have been equal negligence on his part, or what is the same thing, on the part of F. M. Dimond, his agent, in rectifying the error caused by it, and in afterwards apprising the railroad company of it, so that, as far as we can learn from the testimony, months elapsing, the corporation was not only organized but contracted for the construction of their railroad long before notice was given of his mistake to their officers, it will be seen, at once, that there is no pretence for this species of relief, whether we look at the neglect of the complainant, or the injustice which relief against it would cause to the respondents. In cases like this, where there has been no intermixture of fraud or surprise to put the applicant for relief off his guard, we must invent a new head of equity before we can interpose to save him, to the injury of others, against the effects of his own carelessness. The bill must be dismissed with costs.