the purchaser, but, before the parties separated, the lawyer remembered the facts, and obtained possession of the deed, to be held by him until the purchaser's wife should have executed the bond and mortgage. It was held that the mistake in handing over the deed to the grantee before a material part of the transaction had been performed was a mistake of both parties, for the correction of which equity would give relief by cancellation of the deed.176

§ 146. Mistaken Expectation as to Future Events.-A mistaken belief or expectation as to the probable occurrence of a future event is not the kind of mistake which will entitle a party to relief in equity.177 "It is not every mistake that will lay the foundation for the rescission of an agreement. That foundation can be laid only by a mistake of a past or present fact material to the agreement. Such an effect cannot be produced by a mistake in prophecy or opinion, or by a mistake in belief relative to an uncertain future event. A mistake as to the future unknowable effect of existing facts, a mistake as to the future uncertain duration of a known condition, or a mistake as to the future effect of a personal injury, cannot have this effect, because these future happenings are not facts, and in the nature of things are not capable of exact knowledge; and every one who contracts in reliance upon opinions or beliefs concerning them knows that these opinions and beliefs are conjectural, and makes his agreement in view of the wellknown fact that they may turn out to be mistaken, and assumes the chances that they will do so. Hence where parties have knowingly and purposely made an agreement to compromise and settle a doubtful claim, whose character and extent are necessarily conditioned by future contingent events, it is no ground for the avoidance of the contract that the events happen very differently from the expectation, opinion, or belief of one or both of the parties." 178 Thus, the fact that a husband who conveyed property to his wife for her support after his death did so because he be

176 Zoerb v. Paetz, 137 Wis. 59, 117 N. W. 793.

177 Parke v. City of Boston, 175 Mass. 464, 56 N. E. 718.

178 Chicago & N. W. Ry. Co. v. Wilcox, 116 Fed. 913, 54 C. C. A

lieved that he would die before her, in which belief he was mistaken, is not the kind of mistake for which a court will set aside the conveyance.179 For the same reason a person who, without fraud or imposition, executes a release of his claim for damages for personal injuries received, cannot afterwards rescind or repudiate it upon discovering that the injuries actually sustained were much more severe, lasting, or numerous than he had supposed at the time of signing the release, or because his recovery is not so rapid as he had expected.180 And a representation made by a claim agent or other representative of the person responsible for the injury, to the injured person, that the latter will recover within a short time specified, is merely an expression of opinion, and not a fraudulent representation such as to avoid a release of damages given under its influence.181 The case is somewhat different with a physician employed by or representing the responsible party. If he gives any opinion at all, it is his duty to express his honest opinion, and the failure to do so is fraud. Thus where an injured person is induced to execute a release by the false and fraudulent representations of a physician sent to him by the defendant, to the effect that his injuries are but slight and temporary, and that he will soon make a complete recovery, the physician well knowing the contrary, the release will not be binding, especially where the injured person was at the time too weak and ill to form an intelligent judgment for himself.182 But where an attending physi

179 Bartley v. Knott, 140 Ky. 288, 130 S. W. 1096.

180 Seeley v. Citizens' Traction Co., 179 Pa. 334, 36 Atl. 229; Houston & T. C. R. Co. v. McCarty, 94 Tex. 298, 60 S. W. 429, 53 L. R. A. 507, 86 Am. St. Rep. 854; Kowalke v. Milwaukee El. Ry. & Light Co., 103 Wis. 472, 79 N. W. 762, 74 Am. St. Rep. 877; Kane v. Chester Traction Co., 186 Pa. 145, 40 Atl. 320, 65 Am. St. Rep. 846; Dominicis v. United States Casualty Co., 132 App. Div. 553, 116 N. Y. Supp. 975; Tatman v. Philadelphia, B. & W. R. Co. (Del. Ch.) 85 Atl. 716; Borden v. Sandy River & R. L. R. Co., 110 Me. 327, 86 Atl. 242; Owens v. Norwood White Coal Co., 157 Iowa, 389, 138 N. W. 483.

181 Douda v. Chicago, R. I. & P. R. Co., 141 Iowa, 82, 119 N. W. 272. But compare Edmunds v. Southern Pacific Co., 18 Cal. App. 532, 123 Pac. 811.

182 Missouri Pac. Ry. Co. v. Goodholm, 61 Kan. 758, 60 Pac. 1066; Jones v. Gulf, C. & S. F. Ry. Co., 32 Tex. Civ. App. 198, 73 S. W. 1082; International & G. N. R. Co. v. Shuford, 36 Tex. Civ. App. 251,

cian, in the course of treatment, expresses a mistaken, but honest, opinion to the injured person as to the period within which he will recover, and such expression has no connection with the settlement of the claim for damages, a release executed in reliance on such opinion cannot be repudiated.188

But in a case in Pennsylvania, where a contract was made with reference to a situation of affairs which would result from the enactment of a bill then pending before the state legislature, both parties being sincere in their expectation that such bill would pass, and its expected passage being the material inducement to the making of the contract, but the bill failed of enactment, it was held that the contract might be set aside on the ground of a mistake of fact.184

§ 147. Mistake in Matter of Law.-It was long regarded as settled doctrine that equity could give no relief against a contract entered into under a mistake in matter of law, where there was no fraud or misrepresentation and no misunderstanding of the facts.185 This rule was based upon

81 S. W. 1189; Lumley v. Wabash R. Co., 76 Fed. 66, 22 C. C. A. 60; St. Louis & S. F. R. Co. v. Richards, 23 Okl. 256, 102 Pac. 92, 23 L. R. A. (N. S.) 1032; Nelson v. Chicago & N. W. R. Co., 111 Minn. 193, 126 N. W. 902, 20 Ann. Cas. 748. Contra, see Gulf, C. & S. F. Ry. Co. v. Huyett, 99 Tex. 630, 92 S. W. 454, 5 L. R. A. (N. S.) 669.

183 Nelson v. Chicago & N. W. R. Co., 111 Minn. 193, 126 N. W. 902, 20 Ann. Cas. 748; Atchison, T. & S. F. Ry. Co. v. Bennett, 63 Kan. 781, 66 Pac. 1018.

184 Miles v. Stevens, 3 Pa. 21, 45 Am. Dec. 621.

185 Sims V. Lyle, 4 Wash. C. C. 320, Fed. Cas. No. 12,892; Stephenson v. Atlas Coal Co., 147 Ala. 432, 41 South. 301; Burke & Williams v. Mackenzie, 124 Ga. 248, 52 S. E. 653; Carley v. Lewis, 24 Ind. 23; Hancock v. Wiggins, 28 Ind. App. 449, 63 N. E. 242; Kitchen v. Chantland, 130 Iowa, 618, 105 N. W. 367, 8 Ann. Cas. 81; Lyles v. Martin, 5 La. 113; Urquhart v. Gove, 4 Rob. (La.) 207; Jenks V. Mathews, 31 Me. 318; Prince de Bearn v. Winans, 111 Md. 434, 74 Atl. 626; McMurray v. St. Louis Oil Mfg. Co., 33 Mo. 377; Wintermute v. Snyder, 3 N. J. Eq. 489; Fellows v. Heermans, 4 Lans. (N. Y.) 230; Lyon v. Richmond, 2 Johns. Ch. (N. Y.) 51; Spear v. Gillet, 16 N. C. 466; Appeal of Pennsylvania Stave Co., 225 Pa. 178, 73 Atl. 1107, 133 Am. St. Rep. 875; Norris v. Crowe, 206 Pa. 438, 55 Atl. 1125, 98 Am. St. Rep. 783; Hutton v. Edgerton, 6 S. C. 485; Lawrence v. Beaubien, 2 Bailey (S. C.) 623, 23 Am. Dec. 155; Brown v. Armistead, 6 Rand. (Va.) 594; Harner v. Price, 17 W. Va. 523; Pusey

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the theory that every one is presumed to be acquainted with the law, and that no one can be allowed to plead ignorance or mistake of the law as an excuse for his acts or as a ground for relief from a disadvantageous position. Such a case arises, for instance, where a contract is entered into under a mistake in the construction of a will,186 or where the parties make their contract under a mistaken impression of the condition of the law applicable to the case, arising from their knowledge of a certain decision, but they are unaware of the fact that the decision had been subsequently overruled. 187 And generally, where parties knowing all the facts come to an erroneous conclusion as to their legal effect, such conclusion is a mistake of law.188 This rule is still adhered to in all its severity in some of the states. But it has come to be regarded as a harsh rule, founded on an impossible assumption (that of universal knowledge of the law) and often resulting in great injustice. And there are many evidences of a desire on the part of the courts to escape from its binding force, or at least to exercise a discretion as to the instances in which it shall be applied. Thus, in several decisions the rule has been stated in the modified form that equity will relieve against a mistake of law only in exceptional cases and where it would be inequitable to refuse relief.189 The Supreme Court of the United States has said: "While it is laid down that a mere mistake of law, stripped of all other circumstances, constitutes no ground for the reformation of written contracts, yet the rule that an admitted or clearly established misapprehension of the law does create a basis for the interference of

v. Gardner, 21 W. Va. 469. And see, further, Schuman v. George, 110 Ark. 486, 161 S. W. 1039; Gardner v. Watson (Cal.) 150 Pac. 994; Coolin v. Anderson, 26 Idaho, 47, 140 Pac. 969; Campbell v. Newman (Okl.) 151 Pac. 602.

186 Wintermute v. Snyder, 3 N. J. Eq. 489.

187 Kenyon v. Welty, 20 Cal. 637, 81 Am. Dec. 137.

188 Stewart v. Ticonic Nat. Bank, 104 Me. 578, 72 Atl. 741; Palmer v. Cully (Okl.) 153 Pac. 154; Clark v. Lehigh & Wilkes-Barre Coal Co., 250 Pa. 304, 95 Atl. 462.

189 Errett v. Wheeler, 109 Minn. 157, 123 N. W. 414, 26 L. R. A. (N. S.) 816; Diebel v. Diebel, 116 Minn. 168, 133 N. W. 463; Texas & N. O. R. Co. v. Sabine Tram Co. (Tex. Civ. App.) 121 S. W. 256. And see Lawrence v. Beaubien, 2 Bailey (S. C.) 623, 23 Am. Dec. 155.

courts of equity, resting on discretion and to be exercised only in the most unquestionable and flagrant cases, is certainly more in consonance with the best-considered and best-reasoned cases upon this point, both English and American." 100 So also, various courts have observed that the rule against rescission on account of mistake of law should be relaxed where its enforcement would cause great injustice,191 that equity will not allow one to enrich himself unjustly at the expense of another by reason of an innocent mistake, whether of fact or of law, entertained by the loser or by both,192 and that a mistake of law may justify the rescission of a contract where it arises out of the doubtful construction of a grant, which is "very different from ignorance of a well-known rule of law." 193 In reason and common sense it appears absurd to hold people responsible for a knowledge of the law (or to refuse them. relief against the consequences of a mistake) when the legal question involved is unsettled, doubtful, or contested.. This was the view taken in a very early case in South Carolina, where personal property of a wife was, by a marriage: settlement, settled upon her husband for life with remainder to her for life, and after the husband's death, the widow, supposing the settlement void under the recording act, purchased the settled property from the administrator, and her bonds, given for the price, were transferred to creditors of the husband. It being afterwards decided that such a settlement was valid,-a point which before was doubtful,the court ordered the bonds of the wife to be given up and that she should hold the property discharged therefrom.194 There appears also to be good ground for holding that a party may have relief in equity against a contract which is of a kind denounced by the law as illegal (such, for instance, as a contract in restraint of trade), where he entered

190 Griswold v. Hazard, 141 U. S. 260, 11 Sup. Ct. 972, 999, 35 L. Ed. 678.

191 Reggio v. Warren, 207 Mass. 525, 93 N. E. 805, 32 L. R. A. (N. S.) 340, 20 Ann. Cas. 1244; Lawrence v. Beaubien, 2 Bailey (S. C.) 623, 23 Am. Dec. 155.

192 Bronson v. Leibold, 87 Conn. 293, 87 Atl. 979.

193 Beauchamp v. Winn, L. R. 6 H. L. 234.

194 Garner v. Garner, 1 Desaus. (S. C.) 437.