and asks relief on that ground alone, the court will not reform the instrument on the ground that one of the parties to it was guilty of a fraud in executing it. And in asking relief on the ground of mistake, the complaint should point out the mistake, and show in terms what the tenor of the instrument ought to be. It must appear that the contract as reduced to writing does not contain what both parties intended it should, and the true contract in its terms should be shown. So the complaint must show by the facts stated therein that the mistake in question was the mutual mistake of all the parties to the instrument.5 And for the want of an allegation that a misdescription in a deed was the result of a mutual mistake by the grantee, as well as by the grantor and draftsman, the complaint was held insufficint on demurrer. Not only must the fact of a mutual mistake be shown, but also that the party seeking the reformation would be prejudiced by a failure to reform. But a pleading clearly alleging facts showing a mutual mistake, and which points out with entire certainty in what the mistake consisted, asking for a reformation of the contract, is sufficient, although it does not in so many words aver any mistake. And under a complaint alleging the facts upon which relief is claimed, and that by mistake of the plaintiff a deed does not contain a reservation in favor of the plaintiff, to which, under the prior contract between the parties, he was entitled, and that the defendant well knew all of the facts, but not charging fraud in words, relief may be given on the ground of fraud.9 But the general rule is, that in order to maintain an action to reform an instrument, a mutual mistake, or mistake by one party and fraud by the other, must be averred.10 And where a complaint is for fraud, the action cannot be maintained on the ground of mutual mistake; 11 and vice

versa.12 Where the complaint avers a mistake in the description contained in a conveyance, and the defendant in his answer alleges that he made a mistake in the contract of sale, his failure to allege that there was a mistake also on the part of the plaintiff in the contract renders the matter set up in the answer irrelevant, and it constitutes no defense.13 An action may be brought for the reformation of a contract, and for a recovery at the same time, upon the contract when reformed.14 In an action of an equitable character, wherein a conveyance and bond for re-conveyance are together adjudged to constitute a mortgage, the court may, in order to avoid a multiplicity of actions, decree a foreclosure of the mortgage under a prayer for general relief, although it is not specifically asked for.15 A plaintiff in an action who is not estopped by the result of a previous action from insisting upon his rights, cannot maintain a new action to reform the pleading in the former.16

1 Paine v. Jones, 75 N. Y. 593; Albany City Sav. Bank v. Burdick, 56 How. 500; 87 N. Y. 40; Jackson v. Andrews, 59 N. Y. 244; Humphreys v. Hurtt, 20 Hun, 398; Anderson v. Metrop. Life Ins. Co. is N. Y. Week. Dig. 192; Collins v. Insurance Co. 17 Ohio St. 215; De Jarnat v. Cooper, Sup. Ct. Cal. 13 Cent. L. J. 251. Relief will not be granted on a ground not set up in the pleading: Cox v. Esteb, 68 Mo. 110.

2 Stephens v. Murton, 6 Oreg. 193.

3 Stephens v. Murton, 6 Oreg. 193; Lamaroux v. Insurance Co. 3 Duer, 680; Finch v. Hollinger, 47 Iowa, 173.

4 Stephens v. Murton, 6 Oreg. 193; Durham v. Insurance Co. Cir. Ct. Oreg. 5 West C. Rep. 129. And see Brugger v. State Invest. Co. 5 Sawy. 310; Hearne v. Mar. Ins. Co. 20 Wall. 490; Humphreys v. Hurtt, 20 Hun, 398. In an action to reform a deed for an alleged mistake in the description of the land, the complaint is sufficient if it sets out the defective description and the true description, and alleges the mistake: Ramsey v. Loomis, 6 Oreg. 367.

5 Evarts v. Steger, 5 Oreg. 147; Durham v. Insurance Co. Civ. Ct. Oreg. 5 West C. Rep. 129; Ramsey v. Smith, 32 N. J. Eq. 28. And see Syms v. Mayor etc. 18 Jones & S. 289; Miaghan v. Insurance Co. 12 Hun, 321; Berringer v. Schaefer, 52 How. Pr. 69; Whittemore v. Farrington, 12 Hun, 349; 76 N. Y. 452; Humphreys v. Hurtt, 20 Hun, 398. 6 Schoonover v. Dougherty, 65 Ind. 463. And see Nelson v. Davis, 40 Ind. 366; Nicholson v. Caress, 59 Ind. 39; Barnes v. Bartlett, 47 Ind.

7 Conaway v. Gore, 24 Kan. 389.

8 Pitcher v. Hennessey, 48 N. Y. 415.

9 Welles v. Yates. 44 N. Y. 525.

10 Hay v. Insurance Co. 77 N. Y. 235; 13 Hun, 496; Jackson v. Andrews, 59 N. Y. 244; Genet v. Del. etc. Canal Co. 10 Ñ. Y. Week. Dig. 386; 13 N. Y. Week. Dig. 200; Burley v. Weller, 14 W. Va. 264. Where the complaint in an action on a policy of insurance sets forth facts showing that the parties were mistaken as to the effect of the language used, the averments authorize a reformation of the contract, though there is no direct allegation of a mistake of fact: Maher v. Hibernia Ins. Co. 6 Hun, 353; 67 N. Y. 283.

11 McMichael v. Kilmer, 76 N. Y. 36; Leighton v. Grant, 20 Minn. 345 But see contra, Montgomery v. Shockey, 37 Iowa, 107.

12 Stephens v. Murton, 6 Oreg. 193.

13 Kreitz v. Frost, 5 Abb. Pr. N. S. 277. Compare Wemple v. Stewart, 22 Barb. 154.

14 New York Co. v. Insurance Co. 23 N. Y. 357; Maher v. Hibernia Ins. Co. 6 Hun, 353; 67 N. Y. 283; Amazon Ins. Co. v. Wall, 31 Ohio St. 628; Miller v. Davis, 10 Kan. 541; Stewart v. Carter, 4 Neb. 564; Guernsey . Ins. Co. 17 Minn. 104. And see Halstead v. Board of Commissioners, 56 Ind. 363.

15 Herring v. Neely, 43 Iowa, 157. 16 Miles v. Titus, 2 Abb. N. C. 173.

2 194. Rescission and cancellation. Where a rescission of a contract is claimed, this must appear by the complaint or petition.1 The party electing to rescind must offer to return what he has received under the contract, unless it appears that the property is absolutely of no value;' and a complaint which does not allege the restoration of, or an offer to restore, the consideration does not state a cause of action.3 But this rule is held to be applicable only in actions of a legal nature, brought as though the contract had been rescinded; and the complaint in an action in equity to set aside a contract for fraud need not allege that the plaintiff had tendered back the consideration. If a party seeks to sustain a contract made with a lunatic, on the ground that it was made in good faith, for the benefit of the lunatic, and without knowledge of his incapacity, and that it has been so far performed that such party cannot be placed in statu quo, these facts must be alleged and proved. In an action to avoid a contract for the sale of

BOONE PLEAD. -32.

goods and to recover their possession, it is not enough to allege that the defendant, when he purchased the goods, knew that he was hopelessly insolvent and unable to pay for them, and that the plaintiff was wholly ignorant of his insolvency; it is necessary also to allege that the purchase was made with the intent, on the part of the defendant, to take advantage of his insolvency and not to pay for the goods. Where the vendor of land brings trespass to try title thereto, thus ignoring his contract to sell, the defendant cannot obtain a decree for rescission of the contract and adjusting equities between the parties, without alleging a valid ground for the rescission of such contract. In an action by a grantor in a deed to set aside the instrument on the ground of fraud, an allegation in the complaint that at the time of the execution of the deed the plaintiff was seized in fee simple, and was the owner of the premises described in the deed, is a sufficient allegation of title.10

1 Shultz v. Christman, 6 Mo. App. 338.

2 Coghill v. Boring, 15 Cal. 213: Dayton Ins. Co. v. Kelly, 24 Ohio St. 345; Weed v. Page, 7 Wis. 503; Shultz v. Christman, 6 Mo. App. 333; Coddington v. Wells, 59 Tex. 49.

3 Van Liew v. Johnson, 6 Thomp. & C. 648; 4 Hun, 415; Anthony v. Day, 52 How. Pr. 35. And see Des Moines etc. R. R. Co. v. Alley, 3 McCrary, 589.

4 Dusenbury v. Lehmnier, 46 How. Pr. 417. And see Hay v. Hay, 13 Hun, 315; Kiefer v. Rogers, 19 Minn. 32; Martin v. Martin, 35 Ala.

560.

5 Dusenbury . Lehmnier, 46 How. Pr. 417. Rogers, 19 Mini, 32; Hay v. Hay, 13 Hun, 315; Wis. 395.

And see Kiefer v. Potter v. Taggart, 54

6 Riggs . Am. Tract Soc. 84 N. Y. 330; reversing S. C. 19 Hun, 481; 7 Abb. N. C. 433.

7 Houghtaling v. Hills, 59 Iowa, 287.

8 Houghtaling v. Hills, 59 Iowa, 287; Oswego Starch Factory v. Lendrum, 57 Iowa, 573.

9 Clay v. Hart, 49 Tex. 433.

10 Buckholtz v. Grant, 15 Minn. 406. In a suit to set aside a conveyance because of false representations, the plaintiff must allege that he relied upon such representations, and was by them misled to his injury: Horrell v. Manning, 6 Oreg. 413. And see Jones v. Railroad Co. 79 Mo. 92.

2 195. Services-Complaint. - Under the old system of pleading, the count of indebitatus assumpsit for work and labor was always sufficient to authorize a recovery on a contract not under seal, where the plaintiff had fulfilled the contract on his part, And under the Code system of pleading, a party who has wholly performed on his part may count upon the implied assumpsit of the other party to pay the stipulated price, and is not bound to declare specially upon the agreement.2 An allegation in a complaint that the defendant was, on a day named, indebted to the plaintiff in a certain sum of money for work and labor before that time, performed for him at his request, states a good cause of action.3 But the rule is otherwise as to a contract not completed, and in such case the plaintiff should set out the special agreement, and allege a partial performance. If a plaintiff seeks to recover for work and labor performed under a written contract, containing special provisions, the performance of which as conditions precedent he is bound to prove, the contract or its substance must be stated in the complaint, and a compliance with its conditions be distinctly averred. Where, in an action for services, the complaint sets up a special contract as to the price, and also alleges the value, it is in the sound discretion of the court to require the plaintiff to elect under which allegation he will proceed. In an action to recover for services rendered under a contract void by the statute of frauds, the plaintiff may be allowed to amend his complaint so as to recover the actual value of the services rendered by him; this is not substituting a new cause of action, but, in legal effect, conforming the pleadings to the facts. An allegation in a complaint that one has performed work for another at an agreed price per month, or at an agreed price per day, must