a day of the promise, and without the lapse of such reasonable time. The count contains clerical deficiencies, which ought to be supplied. sustained.

Demurrer

DONNELLY v. MCADAMS.

(Supreme Court of Rhode Island. December 15, 1887.)

NEW TRIAL-OVERSIGHT OF COUNSEL.

A new trial will be granted, on terms that defendant recover no costs in any event, upon affidavit of defendant's counsel that the case was called and defaulted in the lower court through his oversight, and the matter was not called to his attention until after the time to appeal had gone by, and in his opinion the defendant had a good defense.

On petition for new trial. Rescript. Accompanying the petition was the affidavit of George J. West, attorney and counselor at law, that he had accepted a retainer for the defendant, and through oversight of his brother, in charge of his business in the district court, the case was called and defaulted. The matter was not called to his attention until after the time to appeal had gone by, and in his opinion the defendant had a good defense.

Pat. H. Mulholland, for plaintiff. A. B. Patton, for defendant.

MATTESON, J. Petition of defendant for new trial granted, without costs, on condition that the defendant re-enter said case in district court for the Sixth judicial district on or before December 22, 1887, and that defendant recover no costs in the suit in any event.

MAGUIRE v. LITTLE et al.

(Supreme Court of Rhode Island. December 17, 1887.) NEGLIGENCE-DEFECTIVE PREMISES-CONTRIBUTORY NEGLIGENCE.

A nonsuit was erroneous where the testimony showed that the opening into which the plaintiff fell and was injured was directly in the doorway through which he had to pass in going to the loft to which he was sent; the plaintiff having no knowledge of the loft or opening, and the evidence not showing it was so dark it was necessary for him to carry a lantern to guide his movements.

Rescript.

Page & Owen, for plaintiff. S. H. Cooker, for defendants.

MATTESON, J. The testimony shows that the opening into which the plaintiff fell and was injured was directly in the doorway through which he had to pass in going to the loft to which he was sent. The plaintiff, having no knowledge of the loft, would not naturally expect to find an opening in such a location, and might, in our opinion, fall into it without negligence, unless he was notified of its existence. The evidence does not show that it was so dark that it was necessary for him to carry a lantern to guide his movements. We think, these being the circumstances, that the nonsuit was erroneous, and the exception must be sustained, and a new trial granted.

BURROUGHS et ux. v. KNUTTON et al.

(Supreme Court of Rhode Island. January 14, 1888.)

1. DESCENT AND DISTRIBUTION-ALLOWANCE TO WIDOW — AUTHORITY OF PROBATE COURT.

The only authority given to courts of probate to make allowances to widows is in settling the accounts of executors and administrators, under Pub. St. R. I. c. 190, § 6. 2. SAME-MONEY IN HANDS OF RECEIVER-PARTNERSHIP PROPERTY.

Money in the hands of a receiver which is, or is claimed to be, copartnership property, and not part of the estate of the deceased, cannot be treated as funds from which an allowance can be made to the widow.

On petition of Laura M. Knutton for payment of allowance to her as widow of George S. Knutton.

George B. Barrows, for petitioner. Page & Owen, for respondent.

PER CURIAM. The court is of the opinion that the so-called allowance cannot be made out of the money in the hands of the receiver, for two reasons: (1) Because the only authority given to courts of probate to make such allowances is in settling the accounts of executors or administrators. Pub. St. R.

I. c. 190, § 6. The allowance here was not so made. (2) Because the money in the hands of the receiver is, or is claimed to be, copartnership property, and not part of the estate of George S. Knutton, deceased. In Bush v. Clark, 127 Mass. 111, cited for petitioner, the intestate was himself surviving partner, and the partnership effects were treated as part of his estate for that reaPetition denied and dismissed.

son.

1. BONDS

BRIGGS v. HOPKINS, Town Treasurer.
(Supreme Court of Rhode Island. January 21, 1888.)

OF TAX COLLECTOR-DUTY OF TREASURER TO APPROVE. At a town meeting it was voted that B. "be collector of taxes; he giving bond to the satisfaction of the town treasurer." By another vote the amount of the bond was fixed at $6,000. Held, that the condition of the bond was prescribed by Pub. St. R. I. c. 37, § 20, and that the town treasurer had only to judge of the sufficiency of the sureties on the bond. Affirming Capwell v. Hopkins, 10 R. I. 378. 2. SAME-REFUSAL OF TREASURER TO ACCEPT BOND-MANDAMUS.

B. filed his bond with the town treasurer, and demanded a copy of the assessment, and a warrant of collection. The town treasurer refused the bond, and B. took it away. It did not appear that the town treasurer refused the bond because the sureties were unsatisfactory. Held, that mandamus should not issue compelling the town treasurer to give a copy of the assessment, and a warrant of collection, unless B. filed his bond again.

On return to writ of alternative mandamus.

Samuel W. K. Allen, for relator. George T. Brown, for respondent.

PER CURIAM. The record shows that at the annual town meeting of West Greenwich, May 23, 1887, it was "voted that Halsey J. Briggs be collector of taxes, for the sum of seven dollars, he giving bond to the satisfaction of the town treasurer;" that November 15, 1887, he tendered to the respondent, town treasurer, a bond "in the sum of six thousand dollars, which was the sum fixed by the town of said West Greenwich as the amount to be put in said bond, and with sureties satisfactory to said Pardon Hopkins, town treasurer as aforesaid, conditioned that the said Halsey J. Briggs shall faithfully perform his said trust as collector of taxes as aforesaid." Upon due qualification for the office, it is the duty of the town treasurer to deliver to the collector the copy of the assessment transmitted to him by the town clerk, and a warrant to collect the tax. The petitioner prays for a writ of mandamus commanding the respondent to issue such copy and warrant, and upon this petition an alternative writ has issued. The respondent contends that as the bond, by the vote of the town, was to be satisfactory to him, his action in regard to it is discretionary, and not within the purview of a writ of mandamus. The town prescribed the amount of the bond, and the statute (Pub. St. R. I. c. 37, § 20,1) prescribed the condition. If any bond at all was filed, the only thing for

"Sec. 20. Every collector of taxes shall give bond, with sufficient surety, for the faithful performance of such trust, to the town treasurer of the town for which he is chosen, in such sum as the said town, or the town council of said town, shall appoint, not exceeding double the amount of the tax with the collection of which he shall be charged. Whenever any town shall elect its town treasurer collector of taxes for such town, the bond to be given by such collector, under the provisions hereof, shall be given to the town, and shall be delivered to the town council for safe-keeping, and, upon the happening of any breach of the condition of the said bond, an action thereon may be commenced in the name of the town to which it was given."

the treasurer to pass upon, therefore would be the sufficiency of the sureties. It was held in Capwell v. Hopkins, 10 R. I. 378, that the treasurer was to judge of the sufficiency of the sureties; and we do not think the vote in this case can mean anything more. It cannot mean to leave the amount of the bond discretionary with the treasurer, for that would nullify the vote of the town; nor can it mean to leave to him the form or condition, for that is prescribed by statute. Evidently the words, "giving bond to the satisfaction of the town treasurer," meant giving bond with sureties satisfactory to him. The petition avers that the sureties were satisfactory to the treasurer. The return does not deny this, nor show that they were insufficient. It simply avers that the respondent "believed said bond to be insufficient and defective, and so informed said Briggs said bond was not satisfactory." All that he says about the sureties is that, as to four of them, he "has not been able to discover that there are any such persons in the town of Cranston," they being described as of that town. He says nothing about the other surety. If the respondent was not satisfied with the sureties, he acted within his discretion, and we cannot compel him to exercise that discretion, one way or the other. But, if the sureties were satisfactory, nothing remained for him to do but the ministerial act of issuing the warrant, which this court may command. We do not think it appears from the record that the respondent's refusal was based upon his discretion as to the sufficiency of the sureties, and consequently the petitioner was entitled to the warrant and copy of assessment. Inasmuch, however, as the petitioner took away the bond after the respondent's refusal to receive it, the order for a peremptory writ will not issue, except upon condition that the bond be refiled.

FEHLBERG et al. v. COSINE et al.

SAME v. OHLY et al.

(Supreme Court of Rhode Island. February 18, 1888.)

EQUITY-REFORMATION OF INSTRUMENT-MISTAKE EVIDENCE OF FRAUD.

A bill in equity to reform a written instrument will not lie where the only evidence of a mutual mistake is that complainants, being unable to understand English, relied upon statements of the defendants as to the meaning of the document, which statements were untrue.1

Bills in equity to reform a written contract, and to enjoin actions at law. Benjamin F. Thurston and Frederick Rueckert, for complainants. Edgar J. Phillips, Herbert B. Wood, and William Fitch, for respondents.

STINESS, J. In order to entitle a party to a decree to reform a written instrument, it must appear that there has been a mutual mistake in its execution. Bradford v. Romney, 30 Beav. 431; Society v. Brown, 26 Beav. 454; Nevius v. Dunlap, 33 N. Y. 676; Lyman v. Insurance Co., 17 Johns. 373; Ludington v. Ford, 33 Mich. 123; Paulison v. Van Iderstine, 28 N. J. Eq. 306. The rule, and the reasons upon which it rests, are clearly stated by AMES, C. J., in Diman v. Railroad Co., 5 R. I. 130: "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, 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 1See note at end of case.

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." This case recognizes another rule of equity that, where there has been a material mistake upon one side, the court may rescind and cancel the agreement, when it can do so without injustice to the other party. There are two principal classes of cases in which this power of the court is exercised. One includes cases of executory contracts, and the like, where the parties can be put in statu quo. In these cases the parties have not, in reality, agreed. Their minds have not met; and if one, without fault on his part, has bound himself to something materially different from what he supposed it to be, which can be annulled without loss or injustice to the other side, it is deemed to be inequitable to enforce it. Lawrence v. Staigg, 8 R. I. 256, 10 R. I. 581; Harris v Pepperell, L. R. 5 Eq. 1; Garrard v. Frankel, 30 Beav. 445; Wright v. Goff, 22 Beav. 207; Spurr v. Benedict, 99 Mass. 463; Glass v. Hulbert, 102 Mass. 24. Another class includes cases where the mistake of the party complaining has arisen from the concealment or withholding of facts which the other party was bound to disclose; thus amounting to a fraud, actual or constructive, which is one of the fundamental elements of jurisdiction in equity. This case does not come within any of these grounds of relief. The written instrument cannot be reformed, because there was no mutual mistake. The complainant Fehlberg formerly manufactured oleomargarine in New Haven, but his establishment was seized and closed upon a suit for the alleged infringement of a patent held by a rival manufacturer. He was then informed by the defendants Hoyt and Ohly that they had the only valid patent for the manufacture of oleomargarine, and that they should stop everybody who did not have their license. Negotiations followed, which resulted in the execution of the agreement or license set forth in the bill. The defendants say the contract was written just as it was agreed upon, and just as they understood and intended it should be. The only evidence of a mutual mistake is the testimony of the complainants that, unable to comprehend the document, from their imperfect knowledge of the English language, they relied on the defendants, especially on Ohly, who spoke German, and were told it gave them the sole and exclusive right to make and sell oleomargarine in Rhode Island. The complainants also state that it was agreed that they were to pay nothing under the license until other manufacturers here had been stopped. But there could have been no mistake about these things on the part of the defendants. They had bought the right to issue licenses under the Cosine patent. They were familiar with the form and effect of licenses, and knew perfectly well the terms of the paper they gave to the complainants. If they stated what it is said they did, it was not a mistake, but a lie, -a fraud. There is no ground for reforming the instrument, for there was no mutual mistake. It might be annulled for fraud, but we do not understand that the bill charges fraud. Following a too common practice, the bill goes on with a sort of affidavit or a narrative of the transaction; not setting out facts so much as the evidence of facts, as if stating the evidence by which a case is to be maintained is the same thing as stating the case itself. The difficulty with such a practice is that the court is frequently at a loss to know what a complainant means to state or charge, and upon what ground he seeks relief. As there is no charge of fraud in this case, as we construe the bill, we do not pass upon that question, and, of course, cannot set the instrument aside on that ground. Neither is the case one where the instrument can be annulled for the material mistake of one party. The contract has been partially executed. For several years the complainants have been manufacturing oleomargarine, if not according to the patent, at least under the license,

which they do not offer to give up, or seek to have annulled. The parties cannot be placed in statu quo without recompense to the defendants for the time the license has run. But this involves the whole question between the parties, viz., what their agreement was, and whether anything was to be paid until after the other manufacturers had been stopped. The contract says nothing about this, but the complainants say this was a part of the agreement. If so, we do not think it was an innocent omission, nor a misapprehension as to the effect of the paper, but simple deceit. If there was fraud, the contract cannot be enforced; if there was no fraud, and there is no proof of mutual mistake, the complainants must abide by a contract improvidently made. The proper forum for trying the question of fraud, since it is not charged here, is in the actions at law, brought to recover the money due under the contract; and for that reason the prosecution of the suits ought not to be enjoined.

Bills dismissed, with costs, but without prejudice to the suits at law.

NOTE.

EQUITY-REFORMATION ON GROUND OF MISTAKE. The provisions of a written instrument will not be disturbed for the purpose of reforming it, unless it be shown

(1) That the instrument does not set forth the true intent of the parties. Fritzler v. Robinson, (Iowa,) 31 N. W. Rep. 61; Water-Power Co. v. Merriman, (Minn.) 27 N. W. Rep. 199; James v. Cutler, (Wis.) 10 N. W. Rep. 147.

(2) That the failure to make the instrument express such intent arose from oversight or mistake in draughting it. Fritzler v. Robinson, supra; Dod v. Paul, (N. J.) 11 Atl. Rep. 817.

(3) That such mistake was mutual. Henderson v. Stokes, (N. J.) 8 Atl. Rep. 718; Spare v. Insurance Co., 19 Fed. Rep. 14; Wachendorf v. Lancaster, (Iowa,) 14 N. W. Rep. 316, 16 N. W. Rep. 533; James v. Cutler, supra; Houser v. Austin, (Idaho,) 10 Pac. Rep. 37; Griffith v. County, (Ark.) 3 S. W. Rep. 886. It must appear that both parties have done what neither intended. Henderson v. Stokes, supra; Spare v. Insurance Co., supra; Houser v. Austin, supra. Where there is any miscarriage in expressing the mind of a party to a contract, it would seem to be just that he should be bound by what he fairly expressed, whether he intended it as he expressed it or not. Building Co. v. Sloan, 21 Fed Rep. 561.

But an instrument may be reformed, though the mistake is not mutual, if the one party knew or had such implied knowledge of the mistake of the other as would make it inequitable to permit him to benefit thereby. Town of Essex v. Day, (Conn.) 1 Atl. Rep. 620; James v. Cutler, supra; Peasley v. McFadden, (Cal.) 10 Pac. Rep. 179.

A mistake of law, made through the representations of an agent, may be corrected in equity, Bailey v. Insurance Co., 13 Fed. Rep. 250; and while for a bare mistake of law alone relief will rarely, if ever, be afforded, yet equity will interfere where it further appears that the defendant, availing himself of the opportunities of the mistake, will take an unconscionable advantage of the plaintiff, Benson v. Markoe, (Minn.) 33 N. W. Rep. 38.

(4) Nor will such instrument be reformed unless the mistake be clearly proved. Baltzer v. Railroad Co., 6 Sup. Ct. Rep. 216; Griswold v. Hazard, 26 Fed. Rep. 135; Guilmartin v. Urquhart, (Ala.) 1 South. Rep. 897. It must be satisfactorily proved,-to a moral certainty. Spare v. Insurance Co., supra. The proof must be so full and clear as to leave no room for controversy. Henderson v. Stokes, supra. It must be entirely clear and satisfactory, Rawson v. Lyons, 23 Fed. Rep. 107; clear, satisfactory, and conclusive, Cummins v. Monteith, (Iowa,) 16 N. W. Rep. 591; clear, satisfactory, and free from reasonable doubt, Wachendorf v. Lancaster, (Iowa,) 14 N. W. Rep. 316, 16 N. W. Rep. 533. It must be clear and convincing, Fritzler v. Robinson, supra; and leave no reasonable doubt in the mind of the court, Houser v. Austin, supra; it must be clear, precise, and indubitable. Ahlborn v. Wolff, (Pa.) 11 Atl. Rep. 799.

Yet while, in actions for reformation of written instruments, the mistake must be established in a clear and convincing manner, to the entire satisfaction of the court, still relief will not be denied simply because there is a conflict in the evidence upon the question of a mistake. Hutchinson v. Ainsworth, (Cal.) 15 Pac. Rep. 82.

On the unsupported testimony of the plaintiff, contradicted by his own conduct, the court will not reform a contract on the ground of mistake. Shipman v. District of Columbia, 7 Sup. Ct. Rep. 134.