Hunter & Springer v. McHose

Chief Justice Skarswood delivered the opinion of the court, March 13th 1882. Had the declaration in this case contained the same averment as in Gower v. Sterner, 2 Whart. 75, — namely, that the cotemporaneous parol agreement offered to be proved was intended by the parties to have been inserted in the covenant, but was omitted therefrom by the mistake of the scrivener, —there would have been ground for holding that the offer of evidence rejected' should have been admitted. Such an averment, if proved, would have justiñed a reformation of the instrument. What a chancellor would decree to be done, the courts of this state consider as actually done. Covenant then would be the proper action upon the instrument as reformed. The plaintiffs, however, contented themselves with declaring on the instrument as they alleged was agreed, without an averment either of fraud or mistake. This did not meet the exigency of the rule, which requires that the defendant should have, distinct notice of the ground upon which the proposed reformation is asked, that he might come prepared to meet it. “I do not consider,” said Mr. Justice Rogers, in Clark v. Partridge, 2 Barr 15, “this as a mere technical objection. It is a matter of some moment to the defendant, to have his cause tried on the only and true issue.” It was held in that case that fraud must be alleged, not merely facts from which a jury might have inferred fraud. To the same effect is Renshaw v. Gans, 7 Barr 117. Parol evidence is inadmissible to reform a written contract according to the intention of the parties, unless the declaration specially sets forth the fraud as a ground for such reformation. The same rule applies of course to the case of mistake. The distinction is well marked between such cases, and those where the parties subsequently agree to a change of the terms. There, if the agreement is under seal, the effect of the subsequent change by parol, is to make the whole parol — and [42] assumpsit,not covenant, is the proper form of action: Vicary v. Moore, 2 Watts 451. Judgment affirmed.