Sprague v. Lux. EDWARD B. SPRAGUE V. HENRY F. Lux. INJUNCTION ENJOINING JUDGMENT AT LAW.-Section 7 of the R. S., Chap. 69, declares that, "only so much of any judgment at law shall be enjoined as the complainant shall show himself equitably not bound to pay and so much as shall be sufficient to cover costs." Although in this case there might have been a technical defense to the action on the notes, yet as the evidence is very clear that at the time the two injunctions were issued there was equitably due appellant the full amount for which the judgment had been rendered, the decree is reversed and the court below is instructed to dissolve the injunction and dismiss the bill. APPEAL from the Circuit Court of Champaign county; the Hon. C. B. SMITH, Judge, presiding. Opinion filed January 16, 1883. Mr. J. O. CUNNINGHAM, for appellant; that the terms of a written contract can not be waived or changed by verbal promises made at the time of entering into the same, cited Kirkpatrick v. Taylor, 43 Ill. 207; Walker v. Crawford, 56 Ill. 444; Miller v. Wells, 46 Ill. 46; Harlow v. Boswell, 15 Ill. 56; Weaver v. Fries, 85 Ill. 356. In chancery as well as at law, allegations must be certain, specific and proofs should correspond: Fitzpatrick v. Beatty, 1 Gilm. 454. Pleadings are taken most strongly against the party making the plea: Happy v. Morton, 33 Ill. 398; West v. Schnebly, 54 Ill. 523. As to the effect of an alteration in a written instrument: Vogle v. Ripper, 34 Ill. 100; Elliott v. Blair, 47 Ill. 342; Matteson v. Ellsworth, 33 Wis. 488; Gordon v. Robertson, N. W. Rep. March 6, 1880. Mr. J. S. WOLFE and Mr. E. W. GRAY, for appellee; cited Burwell v. Orr, 84 Ill. 465; Hubbard v. Hobson, Breese, 147; Arden v. Patterson, 5 John. 44. Although a witness is shown to have knowingly testified Sprague v. Lux. falsely to a material fact, yet such portions of his testimony as may be corroborated by other evidence should not be rejected: Crabtree v. Hagenbaugh, 25 Ill. 240; C. & A. R. R. Co. v. Buttolf, 66 Ill. 347. DAVIS, P. J. Appellee commenced two separate chancery suits against appellant, in which injunctions were issued, enjoining and restraining him from collecting the several judgments obtained by him against appellee on two promissory notes. One judgment was for $143.45, rendered March 5, 1880, on a note executed March 31, 1879, by Lux to Sprague for $130.77, due eight months after date, with ten per cent. interest, and the other for $104, rendered on same day on a note executed March 31, 1879, by George W. Myers as principal and Henry F. Lux, as surety, to E. B. Sprague & Co., for $95.32, due eight months after date, with ten per cent. interest. When these judgments were rendered, each note contained a power of attorney to confess a judgment, and each contained a stipulation for an attorney's fee of five dollars. The judgments were rendered by confession on the power given in the notes. The grounds upon which appellee sought to enjoin the collection of the two judgments were, that appellant promised not to use the notes for the purpose of obtaining judgments on them by confession, but mainly, however, on the ground that the notes had been altered without the knowledge or consent of Lux or Myers after they had been delivered, by inserting in each one, provision of an attorney's fee of five dollars. Before the hearing the two causes were consolidated by order of the court below, and on the hearing, a separate finding was made in each case, and a separate decree making the injunction in each case perpetual. The evidence offered by the parties as to an alteration of the notes after execution was very conflicting; but as we view the case it was unimportant how such question might be determined. A calculation of the amount due on the notes, of principal and interest, when the judgments were Douglas et al. v. Grant. rendered, shows that the attorneys' fees were not included in the judgment. And even though there might have been a technical defense to the action on the notes, yet the evidence in this case is very clear that at the time the two injunctions were issued, there was equitably due appellant the full amount for which the judgments had been rendered. The statute governing the granting of injunctions is peremptory, without reference to the validity of a judgment, that "Only so much of any judgment at law shall be enjoined as the complainant shall show himself equitably not bound to pay, and so much as shall be sufficient to cover costs." R. S. 1874, sec. 7, p. 579. The decree, therefore, must be reversed and remanded with instructions to the court below to dissolve the injunction and dismiss the bills. Decree reversed and remanded. ADDISON C. DOUGLAS ET AL. V. GEORGE GRANT. 1. CONTRACT EVIDENCE WHERE PARTY SEEKS TO RECTIFY MISTAKE IN WRITTEN INSTRUMENT.-Where a party seeks to rectify a written instrument on the ground of mistake, the evidence must be such as to leave no fair and reasonable doubt upon the mind that the instrument does not emb.dy the final intention of the parties. 2. EVIDENCE.-If the facts as alleged by appellee could in any event be regarded as a modification of the written contract, so as to justify a court of equity in making a decree to enforce it as modified, this court does not think the proof sustains the allegation. 3. MISTAKE MUST BE MUTUAL.-Rectification can only be had where both parties have executed an instrument under a common mistake and have done what neither of them intended. A mistake on one side may be ground for rescinding but not for correcting or rectifying an agre ment. 4. STATEMENT.-Appellee contracted to build a store for appellants. He did not claim any mistake in drawing up the contract or that it did not express the mind and intention of both parties at the time it was made, but contended that before entering into the contract he made a mistake in the VOL. XII. 18 Douglas et al. v. Grant. estimate which he discovered after commencing work. Held, that before a court of equity could reform the written instrument entered into by the parties, the proof must show that the writing did not express what both parties intended it should. If appellants did not know of the mistake made by appellee in his estimates, at the time they signed the contract, it can not be said they intended to contract for the payment of a larger sum than that mentioned therein and if they were aware of it, the mistake, if any, was upon the part of appellee, and in that case was not mutual. APPEAL from the Circuit Court of Piatt county; the Hon. C. B. SMITH, Judge, presiding. Opinion filed January 16, 1883. Mr. R. FISHER and Messrs. REED & DAVIDSON, for appellants; that a court will not reform a contract unless the mistake was that of both parties and the contract expresses that which neither of the parties intended, cited Coffing v. Taylor, 16 Ill. 472; Sutherland v. Sutherland, 69 Ill. 482; 1 Story on Eq. Jur. § 155; Dwight v. Pomeroy, 17 Mass. 303. Of the degree of proof required: 1 Story on Eq. Jur. § 157; Sapp v. Phelps, 92 Ill. 594; Miner v. Hess, 47 Ill. 171. Mr. W. G. CLOYD, for appellee; that a court will be disposed to grant relief where the mistake was induced by the misrepresentation of the other party or was perceived and taken advantage of by him, cited Kerr on Fraud and Mistake, 400, 401, 405, 406, 409, 414; Stillman v. Teeple, Saxton, 232; Bigelow v. Barr, 4 Ohio, 358; Williams v. Champion, 6 Ohio, 169; Sparks v. White, 7 Humph. 86; Lawrence v. Beanbier, 2 Bailey, 623; Lake on Contracts, 182; Brown v. Lamphew, 35 Vt. 252; Conner v. Henderson, 15 Mass. 319; MeCormick v. Miller, 102 Ill. 208. If the mind of the court is satisfied, the requirement as to the degree of proof is complied with: Gillespie v. Moon, 2 Johns. 585; Sharman v. Miller, 6 Md. 479; Tucker v. Madder, 44 Me. 206; Hillman v. Wright, 9 Ind. 126; Davidson v. Greer, 3 Sneed, 384; Ruffner v. McConnell, 17 Ill. 217. MCCULLOCH, J. This was a bill in equity to reform a building contract, and to establish and enforce a lien upon the Douglas et al. v. Grant. premises built upon. The contract provides that appellee was to purchase and furnish all the materials, and erect, in a workmanlike manner, a brick building upon the premises therein described, according to certain specifications thereto attached. Appellants were to pay for the same the sum of $2,929, as follows: the material was to be paid for by them as fast as it went into the building, to the parties furnishing the same, or to appellee, upon presentation of receipts that the same had been paid for, and after all such materials were paid for and the laborers satisfied, the balance, if any, was to be paid to appellee. The specifications attached to the contract do not set out the price at which the several kinds of materials, entering into said building, were estimated or were to be paid for. It is further provided in the contract that, in case the number of brick used should exceed one hundred and thirty-one thousand wall measure, the appellants should pay the cost price of such excess over and above the contract price, and in case the quantity used shonld be less than that number, the cost price of such number should be deducted from the contract price. There is no claim that there was any mistake made in drawing up the contract, or that it did not express the mind and intention of both parties at the time it was made. It is contended, however, that, before entering into the contract appellee, at the request of appellants, made out a specific list or bill of materials and labor that would be needed in the construction of the building, and that opposite each item in said list or bill was set down, as appellee believed, the true value on the basis of which each item was estimated, one of which items was for 131,000 bricks at $12 per thousand; that by mistake this item was carried out at $1,236 when the true sum was $1,572; that, by reason of this mistake, the aggregate cost of the building was estimated at $2,929.15 when the same ought to have been $3,265.15. There is no allegation in the bill, nor does the proof show, that at the time the contract was signed, appellants knew of the mistake alleged. The bill does in substance allege that, some time before the |