GOWER against STERNER, and Another, 2 Whart. 75

.The opinion of the court was delivered by Rogers J. It is a general rule, that parol evidence is admissible to explain, but not to contradict, altex-, add to, or diminish a written instrument. But a mistake in any instrument may be rectified, when it clearly appears from satisfactory evidence that it was reduced to writixxg, in terms not comformable to the real intention of the parties. Moliere v. Pennsylvania Ins. Co. (5 Rawle, 347.). 1 Ves. 317. 1 Atk. 545. And there is no reason why the omission of the scrivener to insert a material part of the agreement, should not be corrected here.

If a mistake is made to appear, a Court of Chancery will reform the instrument, in conformity to the agreement; and that which a Coux't of Chancery will do, may be done with us through the instrumentality of a jury. There is nothing which shows that at the execution of the deed, the parties came to any new agreement. The consideration expressed in a deed-may be, and often is contradicted, for it is frequently inserted without any regard to the real contract. The contents of the survey were not calculated- when the parties directed the scrivener to insert the consideration.

There is nothing in the case inconsistent with the allegation that the scrivener committed' a mistake in drawing the articles; and thus the jury have found. The plaintiff declares on the articles in their amended form, with proper averments, showing the mistake in committing the contract to writing. The action is brought on the covenant or agreement, as it was in truth made, anc^ this is the proper course, for the mistake does not avoid the instrument. The articles still remain, notwithstanding the ex’ror, in full operation between the parties.

And this it is not doubted may be done in certain cases; for where suit is brought on a bond or other instrument, it is the constant practice to allow defendants to protect their interests, by proof of a mistake in reducing the agreement to writing; and it is difficult to perceive why the plaintiffs may not avail themselves of the same right: The special. averments in the declaration,' relieve the case from the objections which were taken in Barndoller v.

Tate, (1 Serg. & Rawle, 160;) for although a mistake in drawing articles of agreement, may be proved by parol evidence, yet in an' action of covenant on written articles, the plaintiff is not at liberty to prove by parol an agreement different from that on which he declares.

If in fact, as the Chief Justice says, the parties made a different agreement by parol, that agreement might be the ground of a different action, but could not support an action founded on the articles, By this I understand, that when there is a subsequent, distinct, and independent agreement by parol, modifying or altering the original contract, covenant will not lie on the articles; and this has been so held in Vickary v. Moore, (2 Watts, 254.) It is there decided that an action of covenant lies on a specialty exclusively, not a specialty modified or enlarged by simple contract. In Vickary v.

Moore, the parties came to a new agreement; and for this reason it was held covenant would not lie. But in this case, there is this material difference, that the suit is brought on the original contract as it was really made. We consider that as done which ought to have been done; and hence covenant on the articles as amended by the parol evidence, is the appropriate remedy. The remaining objection as to the interest has been but faintly pressed.

The sum agreed to be advanced for the patent, appears to hg.ve been part of the price of the land, without any intimation in the agreement that interest should be charged. If it had been so intended, it would have been a new stipulation, distinctly provided for in the agreement. Without any stipulation from which this can be inferred, it would be carrying the principle which has governed the Court further than has been heretofore allowed. Judgment affirmed.