And, as we have seen, this mistake was thoroughly known to the state officials before they accepted the bid. The situation therefore appears to be fully within the rule of the leading Connecticut case of Geremia v. Boyarsky, 107 Conn. 387, 140 A. 749, 750 (followed in Home Owners' Loan Corp. v. Stevens, 120 Conn. 6, 179 A. 330; Cherkoss v. Gasser, 123 Conn. 368, 195 A. 737; and see 37 Yale L.J. 1152). In that case Geremia asked Boyarsky to make an offer for some carpentry and painting.

Because the reasoning of Essex v. Day applies equally to the circumstances of this case, the trial court properly refused to charge the jury that a finding of negligence on the part of Klein could defeat the bank's claim for reformation of the note based on its unilateral mistake coupled with fraud or inequitable conduct by the plaintiffs. See also Cherkoss v. Gasser, 123 Conn. 368, 195 A. 737 (1937) (negligence of one party did not bar reformation of a deed where there was mutual mistake as to terms of the deed and other party was not prejudiced thereby); Geremia v. Boyarsky, 107 Conn. 387, 140 A. 749 (1928) (contractor's negligent mathematical error did not preclude rescission of the contract because homeowner knew of the mistake and was not prejudiced thereby). Adopting the plaintiffs' view would reward fraudulent conduct at the expense of one whose mere carelessness had caused him unwittingly to agree to terms not contemplated by the parties.

Under the circumstances of this case, a mere failure to survey is not so egregious an omission as would stay the hand of an equity court from reforming the deeds, especially where both parties were guilty of such neglect. See Houlihan v. Murphy, 93 R.I. 499, 177 A.2d 192 (1962); Cherkoss v. Gasser, 123 Conn. 368, 195 A. 737 (1937). The defendants, for their part, urge us to reverse the judgment of the Superior Court and remand with an order that reformation be granted. They cite Tibbetts v. Pelotte, Me., 427 A.2d 956 (1981) in support of this disposition.

When this occurs, the court exercises the power of reformation where the mistake is common to both parties and by reason of it each has done what neither intended. Mishiloff v. American Central Ins. Co., 102 Conn. 370, 374, 128 A. 33; Snelling v. Merritt, 85 Conn. 83, 100, 81 A. 1039; Cherkoss v. Gasser, 123 Conn. 368, 370, 195 A. 737. There was no mistake on the part of the defendant which influenced or affected it in accepting the offer on the terms submitted.

If, as the court found, the description in the mortgages of the other lot was the result of a mutual mistake, the mortgagees would have had a right to have the mortgages reformed to carry out the real intent of the parties. Cherkoss v. Gasser, 123 Conn. 368, 370, 195 A. 737. If, however, the Giffords knew the true situation, but nevertheless gave the mortgages on the lot of land other than that on which the house stood, they would not be permitted to defeat the mortgagees' right to reformation on the ground that the mistake was not mutual. Home Owners' Loan Corporation v. Stevens, 120 Conn. 6, 10, 179 A. 330. At the time the mortgages were given the deed to lot 31 had been recorded, but the contract to sell lot 32 was not recorded until some years later. Even if a close examination of the map and other documents, such as tax lists, in the town clerk's office and a study of their relationship to the actual situation on the land would have disclosed the error in the mortgages, a failure to discover it certainly would not justify us in holding that the mortgagees had been guilty of negligence which would debar them from relief, in the absence of any finding to that effect.

That fixed the limit of her right of recovery against the defendant. There was no oral agreement between the defendant's agent and the plaintiff's broker which would have justified the court in reforming the policy as sought by the plaintiff on the ground of mutual mistake; Cherkoss v. Gasser, 123 Conn. 368, 370, 195 A. 737; Hoffman v. Fidelity Casualty Co., 125 Conn. 440, 443, 6 A.2d 357; nor was there any oral agreement which could be the basis upon which the court could decree specific performance, even if an oral agreement of the nature of that claimed made with the defendant's agent would be enforceable. See Dresser Son, Inc. v. Insurance Companies, 101 Conn. 626, 642, 126 A. 912.

See also Voll v. Lafayette Bank & Trust Co ., 223 Conn. 419, 429, 613 A.2d 266 (1992) (affirming that mere negligence cannot defeat claim for reformation because holding otherwise "would reward fraudulent conduct at the expense of one whose mere carelessness had caused him unwittingly to agree to terms not contemplated by the parties" and "[e]quity should not sanction such an unconscionable result"); Cherkoss v. Gasser, 123 Conn. 368, 371, 195 A. 737 (1937) (holding that negligence of parties seeking relief did not preclude them from obtaining reformation); Geremia v. Boyarsky, 107 Conn. 387, 392, 140 A. 749 (1928) (holding that defendants were entitled to decree canceling contract despite their negligence in calculating their bid, when plaintiff, before he signed contract, had good reason to believe substantial error had been made in amount of bid and, while contract was still executory, refused to permit correction of error and attempted to take unconscionable advantage of it). There was no indifference to the effect; it was simply an honest assumption that all was right.

The trial court found that the deed from Mildred Cherkoss to the defendants contained a mutual mistake as to access and use of a driveway between the party’s common property line. Cherkoss v. Gasser, 123 Conn. 368, 370-71 (1937). A few years later this successor right to sue for reformation was confirmed by our Supreme Court of Errors.

The plaintiff, her attorney, and Attorney Ryan were unaware that Savage had given to Attorney Ryan to prepare the deed description a land survey which reflected a reconfiguration of Lots 1 and 2. The fact that the plaintiff and her counsel had available to them at the closing a map, Exhibit A, which depicted the modified proposed road layout and that they failed to verify that Lots 1 and 2 remained unaltered from the original plan is of little importance, Cherkoss v. Gasser, 123 Conn. 368, 371 (1977). "Our rule is that negligence may not of itself be a sufficient ground for refusing [reformation of a deed] if it appears that the other party has not been prejudiced thereby," Id.

The Supreme Court has determined that the negligence of a party does not operate to bar the equitable relief of reformation based upon unilateral mistake; Voll v. Lafayette Bank Trust Co., 223 Conn. 419, 428-430, 613 A.2d 266 (1992); or upon mutual mistake when the other party has not been prejudiced. Cherkoss v. Gasser, 123 Conn. 368, 371, 195 A. 737 (1937). The defendant has only alleged negligence which does not preclude liability for the unilateral mistake alleged in count one, and the defendant has not alleged any prejudice which would preclude liability for the mutual mistake alleged in count two. Furthermore, the defendant's allegation that the plaintiff has failed to mitigate damages only applies to the amount of damages which the plaintiff may recover, and does not show that the plaintiff has no cause of action.