Pierson

This is the fourth appeal in the case: See 21 Cal. 122 ; 22 Cal. 128 ; 23 Cal. 249 . The questions raised and discussed in the briefs all arise on the judgment-roll. On the first trial the defendant introduced under objection parol evidence to show that a written contract between the parties, before put in evidence, did not contain the entire contract— that a material term of the contract in favor of the defendant had been omitted by mistake of the scrivener in drafting the instrument. But the mistake was not set up in the answer. *277 The judgment in favor of the defendant was reversed principally on this ground. The court say: “It is well settled that verbal evidence is inadmissible to contradict or vary a written contract, but this rule is inapplicable where a mistake has been made, and the object is to correct it. In this case, however, the mistake is not averred in the answer, and the agreement having been given in evidence without regard to the mistake, oral testimony was not admissible to vary it by the incorporation of a new term. There is no doubt of the power of the court to reform the instrument, but this could only be done upon a direct application, and the matter…