Davis v. . Ely
Supreme Court of North Carolina
Reformation — Contracts, Executed and Executory — Rescission— Specific Performance — Statute of Frauds. This was a civil actioN which was tried before Boykin, J, at Spring Term, 1889, of the Superior Court of Pasquo-tank County.
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Reformation — Contracts, Executed and Executory — Rescission— Specific Performance — Statute of Frauds. This was a civil actioN which was tried before Boykin, J, at Spring Term, 1889, of the Superior Court of Pasquo-tank County. The complaint was as follows : 1. That, on the 22d day of April, 1884, the plaintiff arid defendants entered into a contract with regard to the sale and division of the Great Park estate ; that a paper-writing purporting to contain the terms of said contract, was executed by Timothy Ely and wife Hannah, by their duly authorized agent, Harvey Terry, and by the…
1Opinion of the Court
SheiuieRD, J.,
(after stating the case). There is a hopeless conflict of authority upon the question, whether a court of equity will correct an executory contract on the ground of fraud or mistake, and enforce it with the variation.
In England, and several of the American States, such relief is denied, although a defendant, for the purpose of resisting specific performance, may show that, by fraud or mistake, the written contract does not express the real terms of the agreement. In other States, this distinction is repudiated, and the contract will be corrected and enforced, in proper cases, at…
2Cases cited2 opinions
- Glass v. HulbertMassachusetts Supreme Judicial Court · 1869
- Osborn v. PhelpsSupreme Court of Connecticut · 1848
3Cited by8 opinions
- Allen v. KitchenIdaho Supreme Court · 1909
- Safe Deposit & Trust Co. v. Diamond Coal & Coke Co.Supreme Court of Pennsylvania · 1912
- Commissioners of Lewes v. Breakwater Fisheries Co.Court of Chancery of Delaware · 1922
- Butler v. ThrelkeldSupreme Court of Iowa · 1902
- Davis v. . TerrySupreme Court of North Carolina · 1894
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