delivered the opinion of the court:
Appellant, Anton E. Froyd, filed a bill in equity in the circuit court of Rock Island county against Minnie Schultz, appellee, praying for the reformation of a written contract for the sale of cеrtain real estate and for the specific performance of said, contract after it is reformed. The writing sought to be reformed and enforced is as follows;
“This agreement, made this 22nd day of March, 1912, by and between Mrs. Minnie Schultz and Anton Froyd, witnesseth: Mrs. Minnie Schultz hereby agrees to sell her property, located at 521 Fifteenth street, (26 feet frontage,) to Anton Froyd for the sum of $25,000, trust deеd on said property payable in ten years at six per cent, payable semi-annually; also, in addition to said amount, she agrees to accept the property located at 2313 Fifth avenue, subject to a mortgage of $3000. All taxes due for the year 1911, which are payable in 1912, are to be paid by present owners. All papers are to be closed at Wiltоn Parson’s office on April 1, 1912.
Minnie Schui/Tz.
“I hereby accept the above proposition.—Anton Froyd.
A. E. Froyd.”
The bill alleges that on the 22d day of March, 1912, appellant and appellee entered into an agreement by the terms of which appellee agreed to convey to appellant a certain lot on Fifteenth street, in block 1, in Gilbert & Pitts’ addition to the city of Moline, with a frontage of twenty-six feet on said Fifteenth street, which said lot is aсcurately described by metes and bounds in said bill; that said lot whs to be conveyed to appellant in exchange for a certain lot or parcel of real estate owned by aрpellant, which is referred to in the written memorandum as being located at 2313 Fifth avenue, subject to a mortgage of $3000 and all taxes due for the year 1911 and the sum of $25,000, which said sum was to be paid in ten years and be secured by a trust deed on the premises owned by appellee on Fifteenth street. The bill further alleges that the agreement between the parties was that appellee was to accept a conveyance of the lot of ground referred to in the writing as 23x3 Fifth avenue, which said property is located in the city of Moline, Rock Island county, Illinois, and the same is accurately described by metes and bounds in the bill. The bill charges there was a well understood agreement between the parties as to said exchange of prоperties, and that there was no mistake or uncertainty in the contract between the parties as to the premises concerning which the contract was made. It is further alleged in thе bill that after the parties had come to a full and complete agreement, T. E. Lundell, the agent of appellee, attempted to reduce said agreement to writing, and in doing so by mistake failed to fully describe the premises intended to be conveyed, and that the parties to said agreement, under the mistaken impression that said writing contained a sufficient legal description of the premises involved, duly executed the same. The bill further alleges that appellant afterwards executed a deed conveying, by proper description, the premises owned by him and which by the true intent and meaning of said agreement were by him to be conveyed to appellee, and also executed a trust deed on the premises to be by appellee conveyed to appellant, securing the $25,000, which was evidenced by appellant’s notes, together with interest coupons, one of which was payable evеry six months, and made a tender of said documents to appellee and demanded that she execute to him- a good and sufficient deed conveying to him the premises located оn Fifteenth street according to the true intent and meaning of said agreement, and that appellee wholly refused to accept said deeds and notes and likewise refused to еxecute a deed to appellant. The prayer of the bill is that said writing be by the decree of court reformed by inserting therein a full and accurate description of the two pаrcels of real estate referred to, in accordance with the mutual understanding and agreement of the parties, and that specific performance of said agreemеnt, after the same has been so reformed, be decreed to appellant. Appellee filed a demurrer to the bill, which was sustained by the court below, and appellant having еlected to stand by his bill, a decree dismissing the same for want of equity was entered against him, to reverse which this appeal has been prosecuted.
The sole question presented is whеther-the bill presents a case authorizing the equitable relief sought. The jurisdiction of courts of equity to correct mistakes in written contracts is too well established to require discussion. Most of the cases which present difficulty, in the exercise of this jurisdiction relate to contracts which by the Statute of Frauds and Perjuries are required to be evidenced by writing. Errors in contracts of this character which arise either from mistake, surprise or fraud, the correction of which requires a resort to parol evidence, range themselves into two general classes: those in which the writing includes subject matter or provisions in excess of or beyond the intention of the parties, and contracts in which certain portions of the subject matter or some of the terms are omitted from the writing. (Pomeroy’s Eq.—2d ed.—sec. 285.) There is substantial unanimity in the cases that courts of equity have the power to reform contracts of the first class,—that is, to strike out of the writtеn instrument all subject matter not embraced within the actual agreement of the parties. In so doing the court is merely enforcing the written agreement as to certain matters within the intention оf the parties and refusing to carry it out in respect to those matters which have gotten into the agreement by mistake, surprise or fraud. When it becomes necessary, however, to impоrt into the writing the description of some property or some clause or limitation of which the writing itself gives no hint, some courts have refused to carry the doctrine of reformation to thаt extent, and the reason assigned for this conclusion is, that to bring into the contract, by parol evidence, new subjects or new provisions would be, in effect, to make a new contract between the parties. (Pomeroy’s Eq. supra.) But in this State the doctrine of reformation has never been limited to cases in which something had been inserted in the writing beyond the intention of the parties, but, when a proper case has been presented and clearly proven, relief has been granted where it was clearly shown that some of the terms or provisions of the аgreement or some part of the subject matter had been omitted through accident, fraud or mistake.
In the early case of Hunter v. Bilyeu,
The bill, on its face, states a case which entitles the appellant to the relief sought, from which it necessarily follows that the court erred in sustaining the demurrer thereto and in dismissing the bill.
The decree of the circuit court of Rock Island county is reversed and the cause remanded, with directions to override the demurrer, and for further proceedings not inconsistent with the views herein expressed.
Reversed and remanded, with directions.