Reform

To rectify; to make an instrument what it ought to be; to reconstruct according to the intention of all parties. If through fraud, ignorance, or mistake an obligation does not express the meaning of the parties, it will be reformed so as to conform to it; as, where it is joint, or several, or joint and several, by an oversight.2 Where an agreement as reduced to writing omits or contains terms or stipulations contrary to the common intent of the jfarties, the instrument will be corrected so as to make it conform to the real intent. The parties will be placed as they would have stood it the mistake had not occurred. The party alleging mistake must show exactly in what it consists and the correction that should be made. The evidence must be such as to leave no reasonable doubt upon the mind of the court as to either of these faults. The mistake must be mutual, common to both parties; it must appear that both have done what neither intended. Mistake on one side may be ground for a rescission, q. v. Where the minds have not met there is no contract, and hence none to be corrected." Where an instrument is executed that professes or is intended to carry into execution an agreement, in writing or by parol, previously made between the parties, but which by mistake of the draftsman, as to fact or law, does not fulfill or which violates the manifest intention, equity will coi Tect the mistake so as to produce a conformity of the instrument to the agreement. The reason is, the execution of agreements fau'ly and legally made is one of the peculiar branches of equity jurisdiction, and if the instrument intended to execute the agreement be from any cause insufflcient for that purpose, the agreement remains as much unexecuted as if the party had refused altogether to comply with his agreement, and a court of equity will afford relief in the one case as much as in ' Seavey i;. Beckler, 132 Mass. 204 (1882), Morton, C. J. Op compulsory references, see 21 Cent. Law J. 284-88 (1885), cases. ' Pickersgill v. Lahens, 15 Wall. 144 (1372), Davis, J. the other, by compelling the delinquent party to perform his undertaking according to its terms and the manifest intention of the parties. At the same time, equity has no power to make agreements for parties.' See Joint. The burden of overcoming the strong presumption 'arising from the terms of a written instrument rests upon the moving party. If the proofs are doubtful and unsatisfactory, if there is a failure to overcome this presumption by testimony entirely plain and convincing beyond reasonable controversy, the writing will be held to express correctly the intention of the parties.'^ Parol proof, in all cases, is to be received with great caution, and, where the mistake is denied, should never be made the foundation of a decree, variant from the written contract, except the proof be of the clearest and most satisfactory character. Nor should relief be granted where the party seeking it has' unreasonably delayed application for redress, or where the circumstances raise the presumption that he acquiesced in the written agreement after becoming aware of the mistake. " There are many precedents for reforming policies of insurance in cases where the insured has held the policy until after a loss, in silence and ignorance of the necessity for reformation.*