Speer

This is an action in equity to reform a contract upon the ground of mutual mistake, and also for an accounting between the parties under the contract as reformed. Findings and judgment were made and entered, reforming the contract, and an accounting was had between the parties. Judgment was entered in favor of the plaintiff in the sum of $6,934.80, together with interest and costs of suit. The defendant appeals from the whole of said judgment.

It is contended by the appellant that the evidence is insufficient to sustain a judgment of reformation of the contract in this: That in such actions to justify a reformation, the evidence must be clear and positive, leaving no room for doubt. Among other cases the appellant cites those of Burt v. Los Angeles O. G. Assn., 175 Cal. 668 [ 166 Pac. 993 ]; Hochstein v. Berghauser, 123 Cal. 681 [ 56 Pac. 547 ] ; Luning v. Brooks, 1 Cal. Unrep. 29 ; Home & Farm Co. v. Freitas, 153 Cal. 680 [ 96 Pac. 308 ]; which are to the effect that the proof in actions for reformation of a written instrument must be clear and positive. While this is undoubtedly the rule, yet as said in Capelli v. Dondero, 123 Cal. 324, 328 [ 55 Pac. 1057 ], in an action to…