Spalding v. Conant , 146 Mass. 292 ( 1888 )

C. Allen, J.

In this case it must now be assumed that the bill of sale as originally delivered did not contain the whole of the bargain actually made between the parties, and, upon attention being called to the omission, the defendant, for the purpose of making the writing conform to the actual agreement, inserted the warranty upon which the action is brought. The defendant’s counsel now contends that the plaintiff had accepted the bill of sale without this warranty, and that, having done so, he could not have maintained an action upon the oral warranty, because the bill of sale would have been treated as showing the whole of the contract, and that therefore the warranty inserted in the bill of sale must be treated as a new contract, which was invalid for want of a new consideration to support it. There is, however, no rule of law which prevents parties who discover that their contract has not been correctly expressed in the written instrument, from correcting the writing by mutual consent so as to make it conform to their actual agreement; thus doing voluntarily what might be compelled in equity, on a bill to reform the contract. The instructions were correct.

Exceptions overruled.