portion of a decree of the county court of Genesee county, entered upon the decision of the county judge.

Action to reform and foreclose a mortgage dated March 14, 1881, executed by the defendant Harriet E. Harmon to Jerome C. Guiteau, as treasurer of Genesee county, to secure the payment of $350 in two years with semi-annual interest, according to the condition of a bond accompanying the same.

The complaint, in addition to the usual allegations in foreclosure actions, contained the following: "That at the time said mortgage and bond were taken to secure said moneys, a mistake was made by the draftsman in drawing the same; that it was understood and agreed by the parties thereto that it should cover the whole of the above described premises and be a lien on the whole instead of a part thereof, and that the fourth and fifth lines of the description thereof should read as follows: "All that part of lot 21, village of Batavia, bounded and described as follows' in place of and instead of 'an undivided one-half of village lot 2100 described as follows:' that said correction will make it correspond with the agreement; that said mistake was not discovered until within the last six weeks, and that unless said mistake is corrected, and said moneys are declared a lien upon the whole premises from the date of said mortgage, the plaintiff will be in danger of losing part of the sum designed to be secured, as the premises as described therein are not sufficient security for said moneys, and the mortgagor, Harriet E. Harmon, is insolvent; * * * that by reason of said agreement above mentioned, that this mortgage should be a lien upon and cover the whole of said described premises, instead of one undivided half, the plaintiff claims and insists that said moneys secured thereby are the first lien upon the whole of said premises, and asks this court to so decree and adjudge, and asks that the prayer of the complaint apply to the whole of said premises and said correction in the description be adjudged to be made."

The relief demanded, among other things, was "that said mortgage be adjudged a lien on the whole of said premises from its date."

The defendant by her answer put at issue the allegations quoted above.

The trial court found as a fact that said mortgage was executed, delivered and accepted under the mutual mistake of the parties thereto as to the particulars set forth in the complaint, and that the county treasurer loaned the sum mentioned to the defendant in good faith, and in the belief that the mortgage was drawn, in conformity with said agreement, to cover the whole of the premises. He also found, as a conclusion of law, "that the description, and error in the description, should be amended by substituting in the place of the words an undivided one-half of village lot 2100 described as follows,' these words 'all that part of lot 21 in the village of Batavia, bounded and described as follows:' so that said description of the mortgaged premises shall correspond with the agreement made by the parties, and that said mortgage be and is a lien upon the whole of said mortgaged premises as

273 they will be described when said amendment is made, from the date of said mortgage and prior to the lien of any judgment subsequently obtained, the same as though the description had, when first drawn, included the whole of said premises, and that said mortgage, so as aforesaid amended, be foreclosed on the same for the sum of $380.74 due thereon, and that the usual judgment of foreclosure and sale of said premises and for the amendment of the same, so that said judgment of foreclosure and sale shall embrace the whole of said premises, be entered in this action."

N. A. Woodward, for app'lt; II. B. Cone, for resp't.

VANN, J.-The object of this action, as the complaint shows, was first to reform and then to foreclose the mortgage in question. The findings of the trial court and the judgment entered thereon effected that object so far as the county court had jurisdiction to entertain such an action and to make such a decree. The fact that an agreement was entered into by the parties, but that through mutual mistake the mortgage in its written form did not express what was really intended by them, as found by the court, was warranted by the evidence and was sufficient to authorize a court of equity to decree reformation. Rider v. Powell, 28 N. Y., 310; Bush v. Hicks, 60 id., 298; Born v. Schrenkeisen, 110 id., 55; 16 N. Y. State Rep., 412; Pomeroy's Eq. Jur., § 1376.

The only question open to discussion is whether the county court has jurisdiction of an action to reform a mortgage where part of the relief demanded is the foreclosure of such mortgage after it has been reformed. The county courts are not courts of general jurisdiction, but have such powers as have been expressly conferred upon them by the constitution and by the legislature pursuant to the authority of the constitution. Griswold v. Sheldon, 4 N. Y., 581; Frees v. Ford, 6 id., 176; Arnold v. Rees, 18 id., 57; Cons. St. of N. Y., art. 6, 8 15. While courts of general jurisdiction are presumed to have the powers that they assume to exercise until some limitation thereof is made to appear, the authority of courts of inferior jurisdiction must be shown. Chemung Canal Bank v. Judson, 8 N. Y., 254; Bosworth v. Vandewalker, 53 id., 597; The People ex rel. Tweed v. Liscomb, 60 id., 559. The constitution does not confer jurisdiction in actions of this character upon the county courts, but it directs that they shall have such "original jurisdiction as shall be provided by law." The legislature exercised the power thus confided to it by enacting that "the jurisdiction of each county court extends * to an action for the partition of real property; for dower; for the foreclosure, redemption or satisfaction of a mortgage upon real property; or to procure a judgment requiring the specific performance of a contract relating to real property; where the real property, to which the action relates, is situated within the county.' Code Civ. Pro., § 340.

* *

By another section it also provided that "where a county court has jurisdiction of an action or special proceeding, it possesses the same jurisdiction, power and authority in and over the same and N. Y. STATE REP., VOL. XXXIII. 35

in the course of the proceedings therein which the supreme court possesses in a like case, and it may render any judgment, or grant either party any relief, which the supreme court might render or grant in a like case." Id., § 348. Unless the jurisdiction essential to sustain the judgment appealed from was conferred by these sections it did not exist. While express power to take cognizance of such an action as this has not been given to the county courts, it is claimed, to exist not as a distinct feature, but as incidental to the power to foreclose a mortgage by enlarging the measure of relief and thus aiding to make the foreclosure effectual. An examination into the general nature and object of an action to foreclose and an action to reform a mortgage shows, as was held in Avery v. Willis, 24 Hun, 548, 550, that they are independent remedies that may be attained by separate actions open to separate and independent defenses. The former is a final remedy that by direct action affords the extreme relief to which the plaintiff is entitled, by a sale of the land covered by the mortgage and the payment out of the proceeds of the debt thereby secured. It is confined to a completed instrument and to the enforcement thereof as it was written. It will not lie until something is due upon the mortgage according to its terms, and it may be defeated, at any time before final judgment, by payment of the amount due, with costs. Code Civ. Pro., § 1634. Even after judgment the like payment leads to an arrest of all proceedings to enforce the decree until another default. Id., § 1635. It operates only upon the land described in the mortgage and exclusively upon the interest therein described. On the other hand, an action to reform a mortgage is not a final, but an intermediate remedy. It is primary and preparatory in purpose and until it acts there can be no foreclosure as to the land omitted.

Its object is not to enforce, but to establish the contract, not as it was written, but as it should have been written according to the agreement of the parties. Its action is indirect, because instead of collecting the debt, it renders it more secure. It cannot afford ultimate relief by selling the land and applying the proceeds. Its sole office is to correct mistakes by writing out the contract according to the actual agreement, and thus it may operate upon other lands, including those not situated in the same county. It may be maintained whether anything is due upon the mortgage or not, and it cannot be defeated by partial payment. It is in no sense dependent upon or a part of an action of foreclosure, but rests upon a substantive cause of action dependent only upon itself. The one will lie when the other will not, and one may be presecuted to final judgment, and the judgment fully enforced, without affording any of the relief that is within the province of the other. Indeed, the action to foreclose may be dependent upon the action to reform, as there might be nothing to foreclose until reformation had been decreed. Different statutes of limitation apply to the two actions, which do not require the same parties, as one can, while the other cannot, afford relief against a purchaser in good faith and for value. While the two causes of action are frequently united when relief is sought in a court possessing general

equity powers, the pleadings, proof and principles of law that apply to the one have no application to the other.

We think, therefore, that the power to foreclose a mortgage does not include as incidental thereto the power to reform it, and hence that so much of the decree of the county court as purports to correct the mistake in question was made without jurisdiction, and is void.

The appellant claims that he had a written mortgage upon onehalf of the premises and an unwritten or equitable mortgage upon the other half and that the county court had power to foreclose both, but we think that the statute, when it refers to "the foreclosure, redemption and satisfaction of a mortgage upon real property," means a written mortgage only. It is also claimed that an action to reform a mortgage is an action "to procure a judgment requiring the specific performance of a contract relating to real property," within the meaning of the Code. Section 340. agree, however, with the learned general term in holding that this provision has reference to contracts that are complete and that it does not extend to the reformation of an imperfect instrument, even if it is a lien upon land and in that sense related to real property.

We

The judgment should be affirmed, with costs.

All concur, except BRADLEY and HAIGHT, JJ., not sitting.

LOUIS ENGLEHORN, Resp't, v. ALEXANDER REITLINGER and WILLIAM REITLINGER, App'lts.'

(Court of Appeals, Second Division, Filed October 7, 1890.)

CONTRACT EVIDENCE.

Plaintiffs sued for the value of a quantity of quinine sold on the following sale note: "Sold for account Messrs. C. F. Boehringer & Soehne to Messrs. A. H. Reitlinger & Co., fifteen thousand ounces B. & S. sulphate of quinine, in one hundred ounce tins, at fifty-nine cents per ounce, cash ten days from delivery, delivery to be had from a March, 1887, shipment from the factory in Europe, subject to manufacturers' clauses and war risks. (Signed) St John Brothers." Defendants having refused to accept the quinine defended the action on the contract on the ground that plaintiffs had agreed that if defendants would execute the contract plaintiffs would raise the price and issue a circular to the trade to that effect. Held, that the sales note constituted a complete agreement and could not be controlled by evidence of the parol substitution, as that would change the

APPEAL from a judgment of the general term of the superior court of the city of New York, entered upon an order which overruled defendants' exception and ordered judgment upon a verdict directed by the court.

This action was for breach of contract in refusing to accept 15,000 ounces of quinine which defendant had agreed to purchase from the plaintiff's assignors, by a contract dated February 7,

1887.

The quinine was to be shipped from Europe and delivered to defendants in March following.

The defense was that the agreement was entered into upon condi'Affirming 14 N. Y. State Rep., 749.

tion that if the defendants would execute the contract the plaintiff's assignors would immediately raise the price of quinine from fiftynine cents to sixty-one cents, and would issue a circular to the trade to that effect, and that that condition was never performed by the plaintiff's assignors.

The quinine was tendered to the defendants, who refused to accept it, whereupon it was sold upon notice to them for their account and resulted in a loss. The court directed a verdict for the plaintiff.

Further facts appear in the opinion.

Adolph L. Sanger, for app'lts; J. Hampden Dougherty, for resp't.

BROWN, J.-The contract sued upon was made through brokers and the sale note was as follows:

"Dated NEW YORK, February 7, 1887.

"Sold for account Messrs. C. F. Boehringer & Soehne to Messrs. A. H. Reitlinger & Company, fifteen thousand ounces B. & S. sulphate of quinine, in 100 ounce tins at fifty-nine cents per ounce, cash ten days from delivery; delivery to be had from a March, 1887, shipment from the factory in Europe, subject to manufacturers' clauses and war risks.

(Signed.)

"ST. JOHN BROTHERS."

The defendants sought to show that said agreement was tered into by them upon the representations made by the broker and upon the condition that the price at which Boehringer & Soehne would continue selling quinine would be sixty-one cents per ounce, and upon the further condition that the said Boehringer & Soehne would issue a circular to the trade to that effect. The trial court received the evidence offered by the defendants to establish this allegation over the plaintiff's objection and exception, but at the close of the defendants' case ruled that the proof did not make out a defense and directed a verdict for the plaintiff, to which ruling the defendants excepted.

The general rule which excludes parol evidence when offered to contradict or vary the terms or legal import of a written agreement is so well settled in this state as not to be a proper subject of discussion. It has, however, many exceptions and its full application has by the decisions of the courts been restricted within narrow limits.

In an action by a promisee a promisor may show a failure of a consideration for the promise sued upon. Eastman v. Shaw, 65 N. Y., 522. Or that the contract was destined to take effect only on the happening of some future event, and upon condition that it was to be binding only upon performance of a condition precedent resting in parol. Benton v. Martin, 52 N. Y., 570-574; Juilliard v. Chaffee, 92 id., 535; Reynolds v. Robinson, 110 id., 654; 18 N. Y. State Rep., 235. Or that the instrument sued upon was executed in part performance only of an entire oral agreement. Chapin v. Dobson, 78 N. Y., 74; Brigg v. Hilton, 99 id., 517; Routledge v. Worthington Co., 119 id., 592; 30 N. Y. State Rep.,