Rogers v. Atkinson , 1 Ga. 12 ( 1846 )

Lumpkin, Judge,

having stated the facts of the case, proceeded to deliver the opinion of the court as follows :

The view we take of this case, renders it unnecessary to examine the various questions which have been discussed by counsel. The decision complained of in the first assignment of error, requiring the original bill to be amended, was made before the act of the legislature was passed creating this court. We shall therefore, for the present at least, decline reviewing it. Whether we have the power to do so, is a point that has not been argued at bar, and as it may, and probably will be presented for adjudication hereafter, in a more direct and solemn form, we will not anticipate it. If this court could not assume jurisdiction over an interlocutory judgment, pronounced in the progress of a case, prior to its organization, which case did not terminate till after its establishment, it is quite obvious that the re-affirm anee of that judgment on the final decision of the court below, when the point was not before it, could not give to this court jurisdiction. We express no opinion, then, upon the sufficiency of the original bill, or correctness of the opinion delivered thereon.

The burden of the argument of counsel for the defendant in error has been, to establish the rule, that parol evidence cannot be received, to to, contradict, or materially vary, a written agreement; and that the instrument itself must be considered as containing the true understanding between the parties, and as furnishing better evidence thereof than any which can be supplied by parol. We subscribe to the doctrine in all amplitude, and a series of adjudications, both in England and in this country, in the State and national courts, have firmly and uniformly upheld the principle and placed it beyond the reach of successful attack. It would appear to be doing more than duty requires, an act of supererogation, to refer to the cases. When we reflect, however, that hitherto every thing in the jurisprudence of the State has been fluctuating, and we arc just now upon the threshold of our newly-compacted judicial system, under which what is written will remain written, we feel the necessity and importance of settling every ¡principle upon the most’ solid foundation. In this way alone can we hope to fulfill the design of theAsscmbly in securing stability, as well as uniformity in the administration of the law.

In Roar and others vs. Graham and others, (3 Campbell’s Rep. 57,) the endorsee sued the endorser of a promissory note. The defence set up was, that the defendant refused to endorse the note, unless the plaintiff would agree that it should be renewed on becoming due. They did so agree. Instead of calling for a renewal they demanded payment at the maturity of the note. The evidence was held inadmissáble. Lord Ellenborough says: — “ The parol condition is quite inconsistent with the written instrument. The condition for renewal entirely contradicts the legal import of the endorsement. After the bill is drawn there may be a binding promise, for a valuable consideration, to run it when due. If the promise is contemporaneous the law will not enforce it.” In Powell vs. Edmonds, (12 East 16,) an attempt was made to show by the auctioneer a parol warranty of the quantity of timber contained in the lot purchased, none such appearing in the written conditions of sale : — Thompson Baron, before whom the trial was had, ruled out the testimony, and the question came before Lord Ellenborough on a motion to sot aside the verdict. “ There is no doubt,” says the chief justice, “ that the parol evidence was properly rejected in this action ; the purchaser ought to have had it reduced into the writing at the time, if the representation then made as to the quantify swayed him to bid for the lot. If the parol evidence were admissible in this case, I know of no instance, where a party may not by parol proof superadd any term to the written agreement, which would be setting aside all written contracts, and rendering them of no effect.” Parol evidence was offered in Woollam vs. Hearn, 7 Vesey, to show that £50 was the yearly rent intended to be paid, instead of £73 10s., the price inserted in the memorandum of the lease, and repelled by the Master of the Rolls. “ To admit,” he observed, “ to prove that the written instrument does not contain the real agreement, would be the same as receiving it for any purpose. It was to shut out that inquiry that the rule of law was adopted. Though the written instrument does not contain the terms, it must in contemplation of law be looked to, to contain the agreement, — as furnishing better evidence than parol can supply.”

The inflexibility of this doctrine is vigorously supported by all the judges iu the case of Woodbridge vs. Spooner, (1 Chilly's Rep. 667, and condensed in 3 Barn, and Ald. 233,) where parol proof was adduced to show that a note payable on demand, was not to be collected until after the death of the maker. Abbott, C. J. said “ The role was too well established, that parol evidence cannot bo admitted to contradict, add to, or vary the terms of a written instrument.”

Hailey, J. “ It would be extremely dangerous and inconsistent with those general rules of evidence, by which we proceed in courts of justice, to allow a party, after giving au instrument, in which ho says, ‘ I promise to pay ob demand, to say by parol evidence, ‘ You know 1 did not mean to pay on demand, but I merely promise to pay when I die.’ ”

Ilolroyd, J. “ Inasmuch as the evidence went to the exteal of contradicting the note itself, it appears to n:.e, that the case comes within the general rule of law, that parol cannot be admitted an opposition to written «videnee.”

Best, J. “ Here is a written instrument between the parties by which ihey are bound, and it would be contrary to the first principles of evideuce to receive parol evidence, for the purpose of showing that the written contract is different from that which it is supposed the parties intended. 5 know of but one exception to the general rule, and that is founded in public policy, namely, where the contract is illegal; but if it cannot be shown that there was any illegality in the contract, the law must take effect.”

The same point was decided in a very similar case, Mosely, assignee of Robinson, a bankrupt vs. Hanford, (10 Barn. and Cress. 723) — vide Peacock vs. Monk, 1 Vesey, 128 ; Clarkson, vs Hannah, 2 P. Wms. 204 ; 8 Term Rep. 147, 379, 384 ; 2 Wm. Black. 1249 ; 2 Bos. & Pul. 565 ; 2 Vesey, 195; 6 Vesey, 333 ; Dickens, 295 ; 1 Brown's Ch. Ca. 92, 338; 1 Bla. Rep. 1202, and Fell on Guaranties, 57, 59.) The general rule of the Scotch law is lo the same effect, namely, that writing cannot bo cut down or taken away by the testimony of witnesses.” — Taiton Evidence, p. 326-32 ; quoted by Greenleaf on Evidence, p. 315, n. 2.

We will next advert to a few loading American cases ; they will be found equally explicit upon the point under consideration. The case of Munford et al. vs. Macpherson et al., was an action upon a parol warranty upon the sale of a ship, “ that she was completely copper-fastened.” The printed bill of sale was in the usual form, and contained no such warranty. In the progress of the argument, the court stopped counsel with this pregnant inquiry, “ Can a case be found where an action has been brought upon a parol contract, made unajlatu with a written contract ?” And Thompson, Justice, in delivering the opinion of the court, remarks, “ It is not pretended that there was any fraud in this transaction. -Had the plaintiff’s claim rested on any deceit in the sale, the evidence would have been admitted ; but the contract between the parties was reduced to writing, and is contained in the bill of sale, and recourse must be had to that instrument to ascertain its extent. It cannot be a safe and salutary rule to allow a contract to rest partly in writing and partly in parol. Whenever it is reduced to writing, that is lo be considered as the evidence of the agreement, and anything resting in parol, becomes thereby extinguished.”' (1 Johns. Rep. 414.) In Howes vs. Barker, (3 Johns. Rep. 309,) C. J. Kent says. “ I have struggled hard, and with the strongest inclination to see if the form of the action would not help the plaintiff in this case; but I cannot surmount the impediment of the deed. Sitting in a court of law, I think I am bound to- look to that deed as the highest proof of the final agreement between, the parties.” in Maighley vs. Hamer, (7 Johns. Rep. 341,) the court declared, “ It is a settled rule that where the consideration is expressly stated in a deed, and it is not said, also, for divers other considerations, you cannot enter into any proof of any other, for that would be contrary to the deed. The remedy for the party, if th© deed be contrary to the truth of the case, is by seeking relief in equity against the deed on the ground of fraud or mistake.” (See also Fitzhugh vs. Runyon, 8 Johns. Rep. 375; 2 Cain, 161; Kirby's Ct. Rep. 22.) In Parkhurst vs Van Courtlandt, (1 Johns. Ch. Rep. 281,) the principle is thus strongly stated by the Chancellor ; “ I appróhend the rule to be too reasonable, and too well established to be now disturbed, that where an agreement is reduced to writing, all previous negotiations are resolved into the writing, as being the best evidence of the certainty of the agreement. Everything, before resting i.n parol, becomes thereby extinguished, or discharged. Parol proof cannot Be resorted to, either to supply what may be uncertain or defective in the writing.”

We conclude then that there is no rule of law better settled, or more salutary in its application,than that which refuses to admit oral testimony tai contradict, vary, or materially affect, written, agreements, whether specialties or simple contracts, and whether within or without the statute of frauds ; and we believe that we are altogether safe in asserting that it has been recognised and adopted by every State in the Union. — 4 Ohio Rep. 347; 16 Sergt. &; Rawle, 108 ; 6 Dana, 156 ; 5 Pick. 38 ; 1 Dev. & Bat. 250 ; 6 Halsted's N. J. Rep. 275 ; 10 Grill & John. Rep. 404 ; 11 Louis. Rep. 133, 416 ; 6 Porter's Rep. 132 ; 5 Yerger, 194, 195; 7 Leigh. Rep. 632; 1 McCord Ch. Rep. 490. The question has been repeatedly adjudicated by the courts of the United States. — 8 Wheaton, 174; 9 Wheaton, 581 ; 3 Mas. C. C. Rep. 378; Peters' C. C. Rep. 85, 199 ; Gilpin's D. C. Rep. 329 ; 3 Dall. 415; Bald. C. C. Rep. 489. To use the emphatic language of a popular modern law writer — “ It has been so frequently adjudged by the courts on both sides of the Atlantic, as- to have the resistless force of a maxim, that parol evidence cannot be received in a court of law, to contradict, vary, or materially affect, by way of explanation, a written contract.” ( indeed the rule itself seems never to have been questioned, by courts at least.) The nearest approach to it, I have met with is by Mr. Justice Huston, in the case of Thompson et al. vs. McClenachan et al., (17 Sergt. & Rawle.) His remarks as reported, are theses “ There is scarcely any subject more perplexed than in what cases, and to what extent, parol evidence shall be admitted: not only have different mem viewed the subject differently, but the same man, at different times, has held opinions not easily reconciled ; and I doubt whether any lawyer, of many years standing, and much reflection can say his mind has never-wavered upon the subject. In theory adhere to the writing, neither see nor hear anything out of the deed, seems to sound well, and it would work well in practice, if all who give instructions to scriveners were per-feet; if ¡ill scriveners perfectly understood their instructions, and put them on paper perfectly according to law ; and the -whole was completed by-executing them at the time, and in the order and manner which their nature and the law requires. But when this perfection cannot be even imagined to exist in this world, and the want of it is as apparent in deeds and other writings as anywhere else, the beautiful theory must yield to substantial justice.” This railing accusation against the doctrine, or rather, we should say against the imperfection of everything human, so far from weakening, but demonstrates its impregnability, lúquity comes in, as we shall hereafter see, to relieve the grievances, so vividly portrayed, leaving the rule at law to maintain its undisputed sway.

It is true that counsel occasionally when hard pressed, have insisted that “juries are the legitimate judges of the effect and the weight of evidence, and that the question between written and parol evidence, resolves itself at last into an inquiry as to the weight of evidence only, and that juries ®ught to have an opportunity of judging whether the terms of the contract are reduced to writing, or as orally agreed by the parties at the time of the transaction shall govern. They contend that to every contract, the consent of two minds at least is necessary, and that it is only on the evidence of such consent that the law enforces the observance of the contract, or furnishes the breach of it. This is an old professional device, to misrepresent the relative value of testimony, and it requires a degree of judicial excellence scarcely attainable to guard against, the acuteness of counsel, when the known rules of evidence apply directly against their client. Who does not recollect the ingenious effort of the great Roman Orator, in his elegant oration for the poet Archias to elevate parol evidence even above records ? ^(a)

But the reply uniformly from the Bench is — “ The preference which the law gives to written evidence, when compared with parol testimony of parol agreements, is the unavoidable result of experience. It is impossible to expect that certainty or exactness in the one form of evidence which is found in the other ; -where a contract has been put in writing, assented to, signed by the parties concerned, and continues in ’being, evidence of other parol stipulations, before and at the same time, to explain or vary the written agreement, would be a rejection of that evidence, which is necessarily the best.” While the application of the rule, as now laid down and expounded by the court, is admitted in deeds and other specialties, it has been argued that it did not apply to written •simple contracts; that there was no distinction botvt een written and parol contracts; that they were of equal rank, and that the same evidence might be given as to the one and the other. The rule excluding oral testimony has been universally applied to simple contracts in writing, to the same extent as to specialities — and the reason of the rule applies to one, as well as to the other : When parties have deliberately put their engagements in writing, it shall be presumed to contain their whole understanding, so that oral testimony of conversations, or declarations at the time it was completed, or before, would tend often to substitute a new and different contract, for the one which was really agreed upon — and of course usually to the prejudice of the party opposed to it.

Again, it has been thought that there is a difference between that class of cases required by the statute of frauds to be in writing, and those not within the statute. But the authorities abundantly establish, that this restrictive application has not prevailed, and was expressly repudiated by the court in Massachusetts, in the case of Stackpole vs. Arnold, and the broad proposition adhered to by Justice Parker, that oral testimony is not to be received, to contradict, vary, or materially affect, by way of explanation, any written contract, whether under the statute of frauds, or not, provided the contract is perfect within itself, and is capable of a clear and intelligible exposition from the terms of which it is composed.

To prevent misapprehension, it may not be amiss to specify succinctly the modification of the doctrine and the exceptions to the rule. Where it is not necessary, in the first instance, to have the bargain reduced int© writing, evidence of conversations subsequent to the time of making the agreement, would probably be admitted, to show that- the parties agreed afterwards to vary the contract, or add some new stipulation. Here, the written, agreement, so far as it purports to express the true meaning of the parties, up the time of its execution, is not in any manner-contradicted or impugned; but, from the proposed evidence, it would appear, that they afterwards varied, or added to the contract, which is not. inconsistent with anything contained in the original agreement. — 1 Phil on Ev. 562 ; 1 John. Cases, 22 ; 5 Cowen, 249 ; ib. 497 ; 7 Gill. & John. 407 ; 4 New Hamp. 45; 3 Fairf. 441 ; 1 Mar. Ken. Rep. 582 ; 2 M. Louisa. Rep. 157 ; 6 Halst. Rep. 174; 2 Baily, 121, 113 ; 12 Mas. Rep. 481. — Nor does it matter how soon after the execution of the written contract, the parol one was made. If it was, in fact, subsequent, and otherwise unobjectionable, it can be proven and enforced ; and that, too, when it relates to- the same subject matter. Ia Brewster vs. Countryman, 12 Wend. 446, the court held that parol evidence of art agreement to indemnify, and save harmless, a purchaser of personal property is admissible, although the agreement in respect to the sale is reduced t© writing, and contains no such stipulation, provided, the parol agreement was made subsequent to the written agreement. Here the vender refused to give a written warranty, but said, “ I have sold you the property, it is yours, and I will see you out with itJ This indemnity was considered and adjudged to be valid. So much for the modification of the doctrine. And in view of this, and numerous other cases to-the same purport, were we permitted to travel back so far, we might doubt, at least, the propriety of holding the contract made with Rogers, as a part of the original agreement, so much so as to make it absolutely necessary to reform the writing an the minutes by having it inserted. At any rate, it would seem to have been proper io have submitted it, as a matter of fact, for the jury to find whether, in point of time, it was not subsequent to the arrangement agreed upon between the administrators of Ligón, and the executors of Hargrove, and based upon a new and distinct consideration. The representatives of the two estates were the parties to the contract in writing; and the same representatives of the one parí, and Rogers of the other part, parties to the stipulation omitted. The interest, too, of the co-defendants, so far from being identical, except in the diminution of the verdict, was antagonistic, especially as it regarded the collection of the claim. So much of the agreement «as was put in writing, and entered on the minutes, was necessary to dispose of the litigation then pending, and became the judgment of the court. This consent of the parties, through their counsel, was the only authority of the court for dismissing the appeal, and lessening the damages recovered on the first trial; the part left out was not only not necessary to bo placed on the records, but coaid not have been enforced, in the controversy then before the court. Some of the exceptions are plainly enumerated by Justice Sutherland, in the case of Erwin vs. Sanders and Ely (1 Conn. 249). “ The rule,” says he, “ does not exclude parol evidence oí fraud, or the want ox failure oí consideration iu, nor the enlargement of the time for performance, or the waver of the performance of a written simple contract.” The rule is directed only against the admission of any other evidence of the language employed by the parties in making the contract, than that which is furnished by the writing itself; no other words are to bo added to it, nor substituted in its stead. Surrounding circumstances may bo invoked, to cast light upon the meaning of the parties. The rule does not exclude the testimony of experts to’ aid the court to interpret truly the instrument. Parol evidence is admissible to explain latent ambiguities, to rebut an equity, and to contradict a receipt; nor is the rule which repudiates it infringed by any evidence of hnoicn wad established usage, respecting the subject to which the contract relates. — •Greenleaf on Ev. 315, 754.

And in the case of Gibson vs. Watts, in the Court of Appeals of South Carolina, it was admitted, that “ when a mistake has been made by the misconception of the scrivener, or error in calculation, or any other obvious mistake, (hat parol evidence may be let in to show such mistake.” And it is to that branch of the case, that the court proposes now io address itself: And it will be found that the extent to which adjudications have gone in granting relief, will be a complete answer even to the complaints of the Pennsylvania functionary in his arraignment of a rule, venerable alike for its antiquity and good sense.

In England, as well as in tills country, it has been the steady language of Chancery, that a Court of Equity has the power to reform a written, agreement, and to supply by parol proof so much thereof as may have been left out by fraud or mistake. But while the rule itself is admitted, some different-fa of opinion or doubts seem to exist as to its application. While this species of evidence has been uniformly received in behalf of a defendant, — a plaintiff seeking specific performance has not always been treated with the same indulgence. Indeed the English Courts have repeatedly expressed a strong inclination, not to decree in favor of plaintiffs sec-king not to sol aside the agreement, but to enforce it, when it is reformed by the; parol evidence. They affirm that the difference of right and condition as to the plaintiff and defendant, of evidence offered for the purpose of obtaining a decree and resisting it, exists in the code of every civilized nation. Favorabiliores, rei potius quam aclores habentur — being the maxim of the civil law, and potior est conditio defendentis the familiar language of theirs. The ground of the distinction is this, — When a party has entered into a written agreement, and seeks as plaintiff a specific performance of it, he must rely on the agreement as it stands, — he can neither add to, vary nor explain any of its terms, by parol proof. If he cannot enforce the true contract, he still retains all he ever was in possession of. He may suffer disappointment, which, as the consequence of his want of caution and explicitness, he must bear. But not so with the defendant. He might encounter not disappointment only, but sustain ruinous loss, if compelled specifically to execute an agreement different from that which he contemplated. Were this distinction tenable, Rogers is in the attitude of one who has fully and completely, and at the sacrifice of his rights at law, executed his part of the agreement, in submitting to the dismissal of the appeal, upon the trial of which he would probably' have escaped all liability, and is now insisting that it is unjust, and unconscientious in his faithless adversaries not to abide by the whole of the terms thereof. Judge Story in his learned commentary upon this branch of equity jurisdiction, remarks “ that it is extremely difficult to perceive the principle upon which the foreign decisions can be supported, consistently with the acknowledged exercise of power in the court, to reform written contracts and to decree relief thereon.” It will be found I apprehend that nearly all the cases, in which relief has been refused to the plaintiff were under the statute of frauds, and most of them respected an interest in land, and here parol proof is always received with great caution.

We will not undertake to review the transatlantic authorities. The task has been ably and admirably performed by Chancellor Kent, the Father and ornament of the American Bar, in the case of Gillispie and wife, against Moore, and the conclusion at which he arrived was, that the mistake may be shown by parol proof, and relief granted to the injured party, whether .he sets up the mistake affirmatively by bill, or as defence.— 2 Johns. Ch. Rep. 15, 85. He declares that it would be a great defect in what Lord Eldon terms the moral jurisdiction of the court, if there were no relief in such cases ; that he has looked into all the cases under this head of Equity jurisdiction, and that it appears to be well and thoroughly established, and on great and essential grounds of justice, that relief can be had against a deed or contract in writing, founded in mistake or fraud, whether it was to the prejudice of the one party or the other. And in a later case, Reiselbroek vs. Livingston, (4 Johns. Ch. Rep. 144,) the same eminent jurist says, “ The Master of the Rolls stopped short of relief in the case of Woollam vs. Hearn, (7 Ves. 211) where a mistake, was alleged, because he said there was no precedent allowing parol proof to correct a mistake in favor of a plaintiff seeking specific performance of an agreement. I am not sufficiently instructed at present to admit the soundness of this distinction, which holds parol evidence admissible to correct a writing against but not in favor of a plaintiff. Lord Hardwick does not appear to have been aware of any such distinction in the two cases to which Sir Wm. Grant refers ; and -wh^’ should not iho party aggrieved by a mistake in Iho agreement have relief, as well where he is plaintiff as where he is defendant ? It cannot make any difference in the reasonableness and justice of the, remedy. If a court lias a competent jurisdiction to correct such mistakes, (and that is a point understood and settled,) the agreement when corrected, and made to speak the real sense of the parties, ought to be enforced, as well as any other agreement perfect in the first instance. It ought to have the same efficacy, and be entitled to the same protection, when made accurate under the, decree of the court, and when made accurate by the act of the parties. The one case illustrates the other, res acccndent lumina rebus.

Treading in the footsteps then of Hardwicke, Eldon, Kent, Story and other distinguished Judges of the mother country, our sister States, and of the United States, we hold that parties, whether plaintiffs or defendants, whether seeking to set aside and cancel an agreement, or reform and enforce it, can be relieved, as well on account of mistake as fraud. .It would be monstrous to suppose that the arm of the Judiciary of Georgia was too short, or too weak, to reach and relievo, provided the, contract variant from the true one could once be got into writing ! This doctrine was pushed perhaps to its extreme limits by the Supreme Court in the case between hunt and the administrators of Rousmaniere (1 Peters’Rep. 1.) Hunt filed his bill on the Chancery side of the Circuit Court of the United States for the district of Rhode Island, setting forth that he had, at two several times, loaned Rousmaniere money, for which, in addition to the notes, he was to have, as collateral security, a bill of sale, or mortgage, of the interest of the borrower in two ships. The Neritas and the Industry. Upon consultation with counsel, Rousmaniere executed to Hunt a power of Attorney, authorizing him to make titles to himself, or any other person, to his (Rousmaniere’s) interest, in those vessels, upon the non-payment of the notes at maturity ; and in the event of their loss, (being then out at sea,) to collect and appropriate to his demand the premium which would be due upon the policy of insurance. 'This security was taken under a mistake of law, that the power of attorney would bind the property equally with a mortgage, in case of death or other accident. Rousmaniere' died intestate and insolvent, having paid a small part only of the debt, and this hill was brought by the creditor against the administrators, to get a priority of lien on the assets of the deceased, in preference to the general creditors. The case was vigorously contested and thoroughly discussed, twice before the Circuit, and twice before the Supreme Court. — 2 Mason’s Rep. 244, 342 ; 8 Wheaton, 174; 1 P. S. C. Rep. 1, 14. Chief Justice Marshall delivered the opinion of the Court upon the first hearing at Washington, from which we extract the following- sentences, “ Although we do not find the naked principle that relief may be granted, on account of ignorance of the law, asserted in iho books, we find no case in which it has been decided that a plain and acknowledged mistake is beyond the reach of equity.” “ No proof of actual mistake is required, the existence of an antecedent equity is sufficient;” that is to authorize the court to presume it: and the decree concludes thus : “ And wo are unwilling, where the effect of the instrument is acknowledged to have been entirely mistaken by both parties, to say ihaí a court of equity is incapable of affording relief.”

The court., however, finally denied relief, upon the ground, that they could not substitute another and distinct security from that selected by the parties ; that to do this would be equivalent to making a new agreement, not contemplated by either party, instead of executing that actually made. Judge Story, who presided on all the Successive trials, in referring to this case in his Treatise on Equity, says, “ Equity may compel parties to execute their agreements, but it has no authority to make agreements for them, or to substitute one for another. If there had been any mistake in the instrument itself, so that it did not contain in it what the parties had agreed on, that would have formed a very different case.”

Mr. Justice Washington, who pronounced the final judgment, lays down these general principles as incontrovertible, namely, that, whenever an instrument which' purports to set out the contract, violates by omissions or insertions the manifest intention of the parties to the agreement, equity will correct the mistake, so as to produce a conformity in the instrument to the agreement; and he assigns this obvious and most sensible reason : The object of courts is to carry out the contracts of parties fairly and legally entered into, and if the instrument, from want of skill or mistake, or for any other cause, is insufficient to execute the intention of the parties, the writing itself might be enforced, but the agreement itself would remain as unexecuted, as if one of the parties had refused altogether to comply with his engagement; and a Court of Equity will, in the exercise of its acknowledged jurisdiction, afford relief as well in one case as in the other, by compelling the delinquent party fully to perform his agreement, according to the terms of it, and the manifest intention of the parties. So if the mistake exist not in the instrument itself, which is intended to give effect to the agreement, but in the agreement itself, if it clearly proved to have been the result of some material fact, a court of equity will, in general, grant relief, according to the nature of the particular case in which it is sought.” And to this extent we are prepared unhesitatingly to go in the present case. Taking the statements of the bill as true, and the motion to dissolve the injunction for the want of equity, like a general demurrer, admits them to be true, we ask, does the instrument on the minutes of the court, and which, it does not appear was ever seen by Rogers, carry into effect the agreement of the parties ? On the contrary, is it not manifest that one of its most important provisions was omitted by want of skill in the draftsman, surprise, or some other cause ? And would it not be contrary to the first principles of justice, to permit the representatives of Ligón to enjoy the full benefit which they derived from it, and refuse relief to Rogers ? And that, too, when in his amended bill, he plainly and positively alleges that the part left out, was a portion of the contract attempted to be put in writing, that it ought to have been incorporated therein, and was omitted by mistake ; and the complainant prays to have the instruments reformed according to the true intent and meaning of the parties ? It is the unanimous opinion of the court, that the court below committed error in adjudging these allegations insufficient to entitle the complainant to the answers of the defendants, and a decree in conformity with the nature of his cáse, and to have the injunction in the mean time retained.

As to the third ground, we are clear that, without disturbing the written instrument, there was enough in the bill to have authorized and re-quirt'd the injunction to be retained. A judgment was obtained against the estate of Hargrove and Rogers for $1,600. Rogers, by the declaration of Hargrove, under his own hand, as well as by law, (Prin. Dig. 734, 740; 2 Stewards Rep. 160,) stands in the attitude of security only to the debt: an execution issues, is levied on the property of the principal, more than sufficient to satisfy it, nothing is done to prevent the sale, whoa üolomon, with a full knowledge that the estate of Hargrove was primarily liable, purchases the whole thereof, of the value of $30,000, under some pretended claim as it is alleged, takes the control of the fi. fa., dismisses the levy, and has it relevied upon the goods of Rogers, and that loo, as it is charged, after he, or the representatives of Hargrove, had discharged the demand ; and all this done fraudulently, and under a combination to oppress Rogers, by coercing the money out of him, contrary to the explicit acknowledgment of his co-defendant, when in life, that he alone was responsible. We will not characterize such conduct by branding it as flagrantly unjust, or extremely culpable ; we think, however, that it would strike the dullest apprehension at a glance, that it required to be vindicated, or at least explained, by the defendants, in their answers ; and instead of assailing the equity of the bill, the wiser course, perhaps, would have been to have met these grave charges by a total denial of them, provided they were unfounded. Wo do not sit here, however, to give advice, but to do justice to these litigants.

It is, therefore, ordered and adjudged by the court, that the bill, as amended, contains mailer good and sufficient in law to entitle the complainant to the answers of the defendants ; and it is further ordered that the injunction be reinstated.

(a) “Est ridiculum ¡til ea qua; habemug nihil discere.; qnterere, qn;;; habere non po-fimmus; ct do horoinum memoria, tacere, lilerarum memoriona flagitare; et, cum habeas amplisaimiviri religionem, inlegerrimi municipii jusjuvandum iidomque, ca, qti’P depravan nuilo mouo pussunt, repudiare, tabulas, qaas idem die is solero corrumpi, ■desid erare."

gc;* Which, is translated by Duncan in his copy of Cicero’s Orations, as follows;

Now is it uot ridiculous to sa.y nothing to the evidences which we have, and to desire •those which wo cannot have; to bo silent as to the testimony of men, and to demand the testimony of registers ; to pay no regard to what is affirmed by a person of great dignity, nor to the oaih and integrity of a free city of the strictest honor; evidences which are incapable of being corrupted, and. to require those of registers, which you allow to .be frequently vitiated.