[3] The answer to this suggestion, however, is to be found in the fact that the record does not show any objection to such proof upon the ground that it was parol and proffered for the purpose of varying or altering the agreement of the parties. [4] Moreover, "this . . . is a case where the writing itself, through mistake, does not express the intention of the parties who entered into it, or one of them, and does not therefore contain the real contract between the parties." ( Kee v. Davis, 137 Cal. 456, [ 70 P. 294].) The contention is made that the complaint does not state a cause of action because it fails to aver that the mutual mistake pleaded as a cause of action did not arise from the negligence of the plaintiff.

[2] It is the rule that, where the writing itself, through mistake, does not express the intention of the parties who entered into it, or one of them, and the writing does not therefore contain the real contract between the parties, the objection as to parol evidence is without merit. ( Chastain v. Belmont, 43 Cal.2d 45 [ 271 P.2d 498]; Crawford v. France, 219 Cal. 439 [ 27 P.2d 645]; McCombs v. Church, 180 Cal. 233 [ 180 P. 535]; Kee v. Davis, 137 Cal. 456 [ 70 P. 294, 671].) [3a] There was ample evidence to justify the trial court's refusal of specific performance to the plaintiff.

The question here is whether the evidence was offered and had the effect to vary the terms of the contract, or whether the writing itself, through mistake, did not express the intention of the parties who entered into it, and does not, therefore, contain the real contract between the parties. If the latter, defendant was entitled to reformation. ( Kee v. Davis, 137 Cal. 456, 458, [ 70 P. 294, 671].) "When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not fully express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value."