Presumption as to intent of parties. Principles of revision. Enforcement of revised contract. De G., M. & G., p. 531. "On application of aggrieved party."-See notes to Sec. 3406. Be made to “express intention." This is all that can be taken into consideration. The Court cannot add clauses which the parties did not intend to insert, even though they may be necessary to make the contract fair and effective.Thompsonville Scale Mfg. Co. vs. Osgood, 26 Conn., p. 16; Hunt vs. Rous maniere, 1 Peters, p. 1; 8 Wheat., p. 174; see Betts vs. Grener, 31 Ala., p. 219. "Good faith." A purchaser with notice of the mistake is not protected.-Gouverneur vs. Titus, Paige, p. 347; affirming S. C., 1 Edw., p. 477. "Value."-See Le Roy vs. Platt, 4 Paige, p. 77; Story Eq. Jur., Sec. 165. "Mistake."-Smith vs. McDougal, 2 Cal., p. 586; Kenyon vs. Welty, 20 Cal., p. 637; Parsons vs. Fairbanks, 22 Cal., p. 343; Burt vs. Wilson, 28 Cal., p. 632; Wagenblast vs. Washburn, 12 Cal., p. 208. Courts of Equity.-Wide discretion-Lestrade vs. Bartle, 19 Cal., p. 660. Action to "reform," or "revise," when, and how lies, etc.-Pierson vs. McCahill, 21 Cal., p. 122; Kent vs. Snyder, 30 Cal., p. 666; compare Castle vs. Bader, 23 id., p. 75; Ellis vs. Crawford, 39 Cal., p. 523. 3400. For the purpose of revising a contract, it must be presumed that all the parties thereto intended to make an equitable and conscientious agreement. NOTE.-See note to preceding section. 340f. In revising a written instrument, the Court may inquire what the instrument was intended to mean, and what were intended to be its legal consequences, and is not confined to the inquiry what the language of the instrument was intended to be. NOTE. This is contrary to the rule generally acknowledged in the United States (see 3 N. Y., p. 19; 23 N. Y., p. 556; 1 Peters, p. 1; 8 Wheat., p. 174), but is sanctioned by a recent English decision.-Walker vs. Armstrong, 8 De G., M. & G., p. 531. 3402. A contract may be first revised and then specifically enforced. NOTE.-Gillespie vs. Moon, 2 Johns. Ch., p. 585; Keisselbrack vs. Livingston, 4 id., p. 144; Bouck vs. Wilber, id., p. 405. ARTICLE V. RESCISSION OF CONTRACTS. SECTION 3406. When rescission may be adjudged. 3407. Rescission for mistake. 3408. Court may require party rescinding to do equity. 3406. The rescission of a written contract may be When adjudged, on the application of a party aggrieved: or, 1. In any of the cases mentioned in Section 1689; 2. Where the contract is unlawful, for causes not apparent upon its face, and the parties were not equally in fault; or, 3. When the public interest will be prejudiced by permitting it to stand. NOTE. See note to Sec. 3399, ante. It will be observed that this section provides only for a judgment of rescission, without cancellation. Its scope is therefore properly broader than it would be in the latter case. It may be desirable to have a conclusive adjudication upon the validity of a contract, in cases where there is not sufficient ground for further interference. The discretion of the Court as to the costs is a sufficient check upon frivolous actions of this nature. Only the injured party, or those claiming under him, can impeach a contract on account of his want of consent.-Jackson vs. Eaton, 20 Johns., p. 478. Of course, a party committing a fraud cannot have the contract set aside on that ground. Subd. 1.-Among a great number of cases in which contracts have been set aside on grounds mentioned in Sec. 1689, ante, the following may be especially referred to: Cases of executory contracts.—Belknap vs. Sealey, 14 N. Y., p. 143; Rosevelt vs. Fulton, 2 Cow., p. 129; aff'g S. C., 5 Johns. Ch., p. 174; Bowes vs. Heaps, 3 Ves. & B., p. 117; Broun vs. Kennedy, 9 Jur. (N. S.), p. 1163; Beasley vs. Magrath, 2 Sch. & Lef., p. 31; Martin vs. Mitchell, 2 Jac. & W., p. 413; Jones vs. Thomas, 2 You. & Coll. Ch., p. 498; Archer vs. Hudson, 7 Beav., p. 551; aff'd, 15 L. J. Ch., p. 211. Cases of executed contracts, such as grants, settlements, deeds, etc.-Sears vs. Shafer, 6 N. Y., p. 268; Brock vs. Barnes, 40 Barb., p. 521; Bergen vs. Udall, 31 id., p. 9; Collins vs. Hare, 2 Bligh (N. S.), p. 106; Nottidge vs. rescission may be adjudged. Prince, 2 Giff., p. 246; Bury vs. Oppenheim, 26 Beav. p. 594. In cases of mistake, it is not essential that the mistake should be mutual, or that the misapprehension of one party should be known to the other, in order to warrant a judgment of rescission, as in the case of a revision. Scholefield vs. Templer, H. R. V. Johns., p. 155; see Mortimer vs. Shortall, 2 Dr. & War., p. 363; 1 Con. & L., p. 417. Subd. 2.-Simpson vs. Howden, 3 Myl. & Cr., p. 99; Gray vs. Mathias, 5 Ves., p. 286; Bromley vs. Holland, 7 id., p. 16; see Scott vs. Onderdonk, 14 N. Y., p. 9; Ward vs. Dewey, 16 id., p. 519; Cox vs. Clift, 2 id., p. 118; Piersall vs. Elliott, 6 Peters, p. 95. Where the parties are equally in fault, neither can obtain relief.Harrington vs. Bigelow, 11 Paige, p. 349; Woodworth vs. Janes, 2 Johns. Cas., p. 417; Moore vs. Livingston, 28 Barb., p. 543; Chamberlain vs. Barnes, 26 id., p. 160; Morgan vs. Chamberlain, id., p. 163; Gale vs. Gale, 19 id., p. 249; Mosely vs. Mosely, 15 N. Y., p. 334; Crocker vs. Crocker, 17 How. Pr., p. 504; Bolt vs. Rogers, 3 Paige, p. 154; Manny vs. Phillips, 1 id., p. 472. But where an attorney induced a client to transfer property to him for the purpose of defrauding the client's creditors, it was held that, the parties not being equally in fault, the client could have the deed set aside (Ford vs. Harrington, 16 N. Y., p. 285); and the same rule was applied to the case of a confidential and legal adviser, who was not an admitted lawyer.-Freclove vs. Cole, 41 Barb., p. 318; referring to section generally. A mutual misunderstanding as to the amount of consideration is not a contract.-Rovequo vs. Deferari, 40 Cal., p. 459. Rescission for misrepresentation. Cruess vs. Fessler, 39 Cal., p. 336. Previous offer to refund necessary.—Morrison vs. Lods, 39 Cal., p. 381. In Buchanan vs. Sepulveda, 39 Cal., p. 688, it was held that declaring a trust in favor of the estate of grantor vs. grantee, on the ground that decedent made the conveyance to hinder and defraud his creditors, was error. One in fault cannot ask rescission.-Salmon vs. Hoffman, 2 Cal., p. 138. Parol agreement to rescind sealed contract good if executed, and this agreement may be presumed from the acts of the parties.-Green vs. Wells & Co., 2 Cal., p. 584. Special substantial grounds must be shown to set aside a contract.-Scanlan vs. Gillan, 5 Cal., p. 182. Insolvency is good ground for rescission.-Norton vs. Jackson, 5 Cal., p. 262. Injured party may elect to rescind or proceed on the covenants of his deed.-Alvarez vs. Brannan, 7 Cal. p. 503. But he must restore the other party to his position prior to the contract if he elects to rescind.- for 3407. Rescission cannot be adjudged for mere Rescission mistake, unless the party against whom it is adjudged mistake. can be restored to substantially the same position as if the contract had not been made. NOTE. See previous section, second paragraph of note 2d Subd., et seq. require rescinding 3408. On adjudging the rescission of a contract, Court may the Court may require the party to whom such relief party is granted to make any compensation to the other to do which justice may require. NOTE.-Such compensation must be made by the party relieved to the other party which justice requires. Story Eq. Jur., Sec. 696; Holbrook vs. Sharpey, 19 Ves., p. 131; Bromley vs. Holland, 5 Ves., p. 618; 7 id., pp. 3, 16; Byne vs. Vivian, 5 id., p. 606; Byne vs. Potter, id., p. 609; see Harding vs. Handy, 11 Wheat., pp. 103, 125. equity. ARTICLE VI. CANCELLATION OF INSTRUMENTS. SECTION 3412. When cancellation may be ordered. 3413. Instrument obviously void. 3414. Cancellation in part. When 3412. A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled. NOTE.-May be canceled when if outstanding it may reasonably cause injury. This is the principle which seems to govern the numerous and somewhat conflicting decisions upon the cancellation of instruments. See Field vs. Holbrook, 6 Duer, p. 597; 14 How. Pr., p. 403; Ward vs. Dewey, 16 N. Y., p. 519; Scott vs. Onderdonk, 14 id., p. 9; Cox vs. Clift, 2 id., p. 118; Williams vs. Ayrault, 31 Barb., p. 364; Hamilton vs. Cummings, 1 Johns. Ch., p. 517. The difficulty arises in its application. Compare the foregoing cases, and see, also, Thorton vs. Knight, 16 Sim., p. 509; Threlfall vs. Lunt, 7 id., p. 627. To person against whom it is void. Thus a deed of land sold under a void official sale (Craft vs. Merrill, 14 N. Y., p. 456; Scott vs. Onderdonk, id., p. 9; Lounsbury vs. Purdy, 18 N. Y., p. 515; 16 Barb., p. 376; Tisdale vs. Jones, 38 Barb., p. 523; Cook vs. Newman, 8 How. Pr., p. 523; Radcliff vs. Rowley, 2 Barb. Ch., p. 23), a forged deed (Peake vs. Highfield, 1 Russ., p. 559; Seccombe vs. Fitzgerald, id., p. 561; see Bp. of Winchester vs. Tournier, 2 Ves. Sr., p. 446), or one fraudulently altered (Bushnell vs. Harford, 4 Johns. Ch., p. 301), or a lease given immediately after the sale of land by the lessor, and dated of a prior day (Pierce vs. Webb, 3 Bro. C. C., p. 16), may be canceled. To person against whom it is voidable. A deed may be canceled, or its surrender compelled, on the application of a party whose signature was obtained by fraud (Ogilvie vs. Jeaffreson, 2 Giff., p. 353; Vorley vs. Cooke, 1 id., p. 230; Brent vs. Brent, 10 L. J. Ch., 84; Fenn vs. Craig, 3 You. & Coll. Ex., p. 216), or by mistake (Willan vs. Willan, 16 Ves., p. 72; Underhill vs. Horwood, 10 id., p. 200; 14 id., p. 28), and so in the case of a usurious mortgage.-Williams vs. Ayrault, 31 Barb., p. 364; Hartson vs. Davenport, 2 Barb. Ch., p. 77. Application granted. This relief can be granted only upon the application of a party directly interested. Thus, a grantor who has no longer any interest in the land, though he has covenanted with his grantee to procure the discharge of an apparent lien, cannot sue for its cancellation.-Townsend vs. Goelet, 11 Abb. Pr., |