Taking of Land — Assessment — Equity — Mistake of Fact — Rescission or Reformation of Contract. A mistake, not with reference to the existence at the time of a certain fact, but simply as to the probability of the occurrence of a future event, is not a mistake of fact within the meaning of that term in the rules in equity concerning the rescission or reformation of a contract. The mistake must be with reference to a fact past or present.
HAMMOND, J.
Even if it be assumed in favor of the plaintiff that the inquiries made by him and the answers given to him were broad enough to cover the case of sewer assessments, and that he would not have settled with the city unless he had supposed that no sewer assessment was to be laid, and even if several other grave objections to the relief prayed for be passed over, it is plain that there is one feature of the case as stated in the bill which is fatal to the plaintiff.
The plaintiff was mistaken as to whether after the settlement he "would not be liable to pay any assessment or contribution towards the cost of the improvements then going on in Blue Hill Avenue or any part thereof except what might be included in his" general annual tax. In so far as his liability depended upon the law authorizing such an assessment and he was mistaken about that, it was a mistake as to the general well known law on the subject and not of fact. And moreover we do not understand the bill to allege that the plaintiff was mistaken about the law. In so far as his liability depended upon any assessment which the proper authorities might thereafter lay and he was mistaken about that, it was a mistake not with reference to the existence at that time of a certain fact, but simply as to the probability of the occurrence of a future event. This is not a mistake of fact within the meaning of that term in the rules in equity concerning the rescission or reformation of a contract. The mistake must be with reference to a fact past or present. Kerr, Fraud Mistake, (2d ed.) 476. Beach, Eq. Jur. § 49. Southwick v. First National Bank of Memphis, 84 N.Y. 420.
Demurrer sustained.