Relief of mistake of fact generally.

- Although equity will not reform a written contract because of mistake as to the contents of the writing on the part of the complaining party, who is able to read but fails to do so, where no sufficient excuse appears as to why such party did not read the contract, such principle has not been extended to cases in which it is sought to reform written instruments on the ground of mutual mistake of fact. Sheldon v. Hargrose, 213 Ga. 672, 100 S.E.2d 898 (1957).

Even where money is paid under a mistake of fact or in ignorance of facts, it cannot be recovered, unless the circumstances are such that the party receiving it ought not, in equity and good conscience, to be allowed to retain it. The expression, "in equity and good conscience," refers only to the acts and intentions of the person receiving the money as affecting the other party to the transaction. If he has acted in good faith and in good conscience with the person paying the money, he is entitled to retain it, even if his actions and intentions may not have been in good faith and in good conscience as regards other persons not connected with the transaction. Bryant v. Guaranty Life Ins. Co., 40 Ga. App. 573, 150 S.E. 596 (1929).

Where, due to a mistake of fact unmixed with negligence, the condemnation proceeding for a public road was conducted throughout upon the theory that the road would be paved at approximately grade level, thus improving rather than damaging the remaining abutting property, and there was nothing to indicate that a fill of from 25 to 40 feet would be made in front of the remaining property which would damage it in the amount of approximately $20,000.00, a petition in equity, alleging these facts and alleging that the mistake prevented the owners from proving this consequential damage, alleged a cause of action to set aside the award and the judgment of condemnation and to recover the full damages. Whipple v. County of Houston, 214 Ga. 532, 105 S.E.2d 898 (1958).

A contractor who has bid for the excavation of highway sites on a basis of "unclassified material" may not, under the guise of mistake of fact, seek additional compensation in an action at law because the material excavated contained a higher percentage of rock than it expected, even though its only information at the time of the bid was results of test borings made available to it by the highway department (now Department of Transportation), where it was specifically stipulated that the data were not guaranteed and did not bind the department; where the department furnished all information which it had available, made no attempt to conceal actual conditions, and stipulated the provisional character of its tests, where the contractor had equal opportunity with the department to conduct its own investigation, and where the parties with knowledge of these facts elected to contract on a basis of material moved rather than to contract on a basis of the percentage of dirt and rock after removal. State Hwy. Dep't v. MacDougald Constr. Co., 102 Ga. App. 254, 115 S.E.2d 863 (1960).

Where a deed fixes the northern boundary of a tract of land as a certain public road, the legal effect of such description, in the absence of a contrary intention being manifested in the instrument, is that the road open and actually in use by the public is the road intended by the parties, rather than the site of an old road, and the language, being unambiguous, cannot be aided by extrinsic evidence to extend the boundary to the old-road site, the sole remedy for such purpose being reformation of the deed. Miller v. Rackley, 199 Ga. 370, 34 S.E.2d 438 (1945).

A defense of mistake of fact is not available to one who relies on a unilateral mistake, especially where the mistake, if there is one, is caused by the party's own negligence. Hyman v. Horwitz, 148 Ga. App. 647, 252 S.E.2d 74 (1979).

Evidence of mistake must be clear, etc.

- A mistake, either of law or fact, is cognizable in equity and affords a remedy therein by reformation of the instrument so as to make it express the true intention of the parties, on a proper cause being made; but such a jurisdiction will always be cautiously exercised, and to justify it the evidence must be clear, unequivocal, and decisive. Yablon v. Metropolitan Life Ins. Co., 200 Ga. 693, 38 S.E.2d 534 (1946).

Use of extrinsic evidence.

- If the description in a deed is unambiguous, extrinsic evidence cannot be resorted to, except for the purpose of reforming the deed so as to make it express the real intention of the parties and correct a mutual mistake of fact. Miller v. Rackley, 199 Ga. 370, 34 S.E.2d 438 (1945).

Standing to seek reformation of liability contract.

- In certifying certain questions to the Georgia Supreme Court, the federal Court of Appeals concluded that it is an open question of Georgia law whether a person injured by a municipality has a beneficial interest in the municipality's liability contract sufficient to provide standing to seek reformation. Florida Int'l Indem. Co. v. City of Metter, 952 F.2d 1297 (11th Cir. 1992), aff'd, 984 F.2d 1138 (11th Cir. 1993).

Affirmation of contract barred rescission.

- The plaintiffs were not entitled to rescission of their purchase of a house on the basis of a mistake of fact arising from a water line easement since their conduct in rebuilding the house with improvements following a tornado showed that they intended to treat the home as their own and was indicative of their affirmation of the contract. Aliabadi v. McCar Dev. Corp., 249 Ga. App. 309, 547 S.E.2d 607 (2001).

Cited in Paris v. Treadaway, 173 Ga. 639, 160 S.E. 797 (1931); Young v. Hirsch, 187 Ga. 1, 199 S.E. 179 (1938); Bender v. Randall Bros., 189 Ga. 197, 5 S.E.2d 889 (1939); Orient Ins. Co. v. Dunlap, 193 Ga. 241, 17 S.E.2d 703 (1941); City of Jefferson v. Trustees of Martin Inst., 199 Ga. 71, 33 S.E.2d 354 (1945); Hargrove v. Bledsoe, 78 Ga. App. 107, 50 S.E.2d 223 (1948); Peerless Cas. Co. v. Housing Auth., 228 F.2d 376 (5th Cir. 1955); Robinson v. Wright, 217 Ga. 199, 121 S.E.2d 640 (1961); Eastside Carpet Mills, Inc. v. Dodd, 144 Ga. App. 580, 241 S.E.2d 466 (1978); Crane v. Adams-Cates Co., 256 Ga. 407, 350 S.E.2d 767 (1986); Rose v. Cain, 247 Ga. App. 481, 544 S.E.2d 453 (2001).

Am. Jur. 2d.

- 27 Am. Jur. 2d, Equity, §§ 31, 32.

C.J.S.

- 30 C.J.S., Equity, § 44 et seq.

ALR.

- Ignorance of, or mistake as to, terms of existing mortgage upon the property as ground for relief from a contract for the purchase of real property, 26 A.L.R. 528.

Relief from contract of sale because of mistake as to amount of commodity which it calls for, 31 A.L.R. 384.

Good faith in receiving payment made under mistake of fact as affecting its recovery, 87 A.L.R. 649.

Property rights in respect of building, fence, or other structure placed upon another's land through mistake as to boundary or location, 130 A.L.R. 1034.

Conscious ignorance of fact, as distinguished from mistake of fact, as ground for reformation of contract, 137 A.L.R. 908.

Reformation on ground of mutual mistake regarding character or extent of estate or title imported by language used in instrument, 141 A.L.R. 826.

Mistake as to existence, practicability of removal, or amount of minerals as ground for relief from mineral lease, 163 A.L.R. 878.

Measure and items of recovery for improvements mistakenly placed or made on land of another, 24 A.L.R.2d 11.

Recovery back by employer of compensation paid to employee as result of mistake or the employee's fraud, 88 A.L.R.2d 1437.

Reformation of property insurance policy to correctly identify the person or interest insured, 25 A.L.R.3d 580.

Vendor and purchaser: mutual mistake as to physical condition of realty as ground for rescission, 50 A.L.R.3d 1188.

What constitutes mistake in the identity of one of the parties to warrant annulment of marriage, 50 A.L.R.3d 1295.

When statute of limitations begins to run against action to recover money paid by mistake, 79 A.L.R.3d 754.

Right of insurer under health or hospitalization policy to restitution of payments made under mistake, 79 A.L.R.3d 1113.