VANN, J.

At the time of the sale by auction the plaintiff owned a claim against Hoffman Company for only $1,191.28, yet by his representation that it amounted to $2,036.54 he induced the defendant to purchase it as a demand for that amount, and gave him a written assignment describing it as a claim upon which that amount was unpaid. He has procured a judgment reforming the assignment by reducing to the smaller sum named a claim which, as he represented, was for the larger sum and which he so described in a written instrument that was the only legal evidence of the transaction between the parties. This has been done upon the theory that a court of equity has power to decree a reformation because a fact existed which was unknown to both parties when they made the contract. That fact was the collection upon the claim against Hoffman Company of the sum of $845.26 by Welker, who was the attorney for the plaintiff, and whose action in making the collection bound the plaintiff, but with whom the defendant, at the time he bought the claim, had had no connection.

There was nothing omitted from the contract by mistake or contrary to the intention of the parties. It was written in the precise form intended by both and expressed their entire agreement. Nothing was put in the assignment and nothing was left out, except as both parties intended and desired at the time the contract was made. There was no mutual mistake, or mistake on one side and fraud on the other, which led to the insertion or omission of some provision contrary to the real intention. The minds of the parties met upon everything which is in the assignment and upon nothing which is not in the assignment, and, under such circumstances, any change made by the court was not reforming the contract but making a new one.

An action to reform a written agreement rests upon the theory that the parties came to an understanding, but in reducing it to writing, through mutual mistake, or through mistake on one side and fraud on the other, omitted some provision agreed upon, or inserted one not agreed upon. The object of such an action is to so change the instrument, as written, as to conform it to the agreement, as made, by inserting the provision omitted, or striking out the one inserted by mutual mistake. In the absence of fraud nothing can be put in or taken out by the court, unless it was the intention of both parties that it should go in or be left out when the agreement was written. The sole office of such an action "is to correct mistakes by writing out the contract according to the actual agreement." ( Thomas v. Harmon, 122 N.Y. 84, 89.) Equity will not make a new agreement for the parties, nor, under color of reforming one made by them, add a provision which they never agreed upon and did not want when the contract was written, "although it may afterward appear very expedient or proper that it should have been incorporated." When the writing expresses the actual agreement it cannot be reformed and a stipulation, not assented to, can never be added. ( Nevius v. Dunlap, 33 N.Y. 676; Bryce v. Lorillard Fire Ins. Co., 55 N.Y. 240, 242; Paine v. Jones, 75 N.Y. 593; Born v. Schrenkeisen, 110 N.Y. 55; Albany City Savings Institution v. Burdick, 87 N.Y. 40; Paine v. Upton, 87 N.Y. 327; Pitcher v. Hennessey, 48 N.Y. 415; Many v. Beekman Iron Co., 9 Paige, 188, 195; Snell v. Ins. Co., 98 U.S. 85; Story's Equity Jur. § 468; Pomeroy's Eq. Jur. §§ 855, 870, 1376.) The remedy of reformation for mistake should not be confounded with that of rescission for fraud. No fraud is claimed in this action, and the mere fact that an instrument "ought not to be enforced is insufficient, standing alone, to justify a resort to equity." (Beach on Eq. Jur. §§ 540, 552.) "Mistake," said Mr. Pollock, "does not of itself affect the validity of contracts at all. But mistake may be such as to prevent any real agreement from being formed, in which case the agreement is void; or mistake may occur in the expression of a real agreement, in which case, subject to rules of evidence, the mistake can be rectified." (Pollock on Contracts, 392.) "A mistake on one side may be a ground for rescinding a contract, or for refusing to enforce its specific provisions, but it cannot be a ground for altering its terms." (Adams Equity, 171.)

Upon applying these principles to the case in hand, it is obvious that the learned trial judge proceeded to judgment upon an erroneous assumption. He was under the impression that because both parties were ignorant of the collection by Welker, there was a mutual mistake which would justify a reformation of the contract. In the absence of fraud on one side and mistake on the other, reformation is never based upon ignorance, although rescission may be, but upon what the parties agreed to and then, by the mistake of both, failed to express in the writing. A mere mistake is not enough to support such an action, as it must not only be mutual, but special, for it must relate to something agreed upon but not written out as agreed upon. In the case before us both parties assented to the same thing, the one to sell and the other to buy a claim for $2,036.54, and the assignment expresses precisely that and nothing else. Neither agreed to buy or sell a claim for $1,191.28, and there was no mistake on the part of either in not thus describing the thing sold. A claim for the smaller amount was not in the mind of either party, for neither supposed it to exist, and hence their minds could not have met on the transfer of such a claim. What the parties did not agree to cannot be added by the court. The defendant paid a small sum for a doubtful claim, large in amount, and ran the risk of losing what he paid for the chance of realizing a great profit. He is entitled to the contract in the form in which it was made without interference by the court in the guise of reformation. The plaintiff got what he agreed to take and assigned what he agreed to assign, and he has no more right to a reformation of the contract than he would have to strike out a warranty of soundness from a bill of sale of a horse, because he and the purchaser both believed the horse to be sound when in fact it was unsound. He sold the claim in question with a warranty that it was for a certain amount, and he cannot get rid of the warranty by "reforming" it out of the contract upon the ground that he sold something he did not have, although he supposed he had it. This would ignore the rights of the defendant and impose upon him a contract that he never made.

The plaintiff was not entitled to recover from the defendant the amount collected by the latter from the attorney in Indiana. The money in Welker's hands did not belong to the defendant, for it did not pass by the assignment of the claim sold at auction. The plaintiff then had two claims, one against Welker and the other against Hoffman Company. He did not sell the former to the defendant, nor authorize him to collect it. The payment by Welker did not bind the plaintiff, who is still entitled to recover from him the same as if he had made no payment to the defendant. The defendant was not the trustee or agent of the plaintiff, and had no money of the plaintiff in his hands. The payment to the defendant was not to the plaintiff's use. The defendant did not make the collection in the name or on behalf of the plaintiff, but in his own name and on his own behalf. The identical money received by Welker from the assignee of Hoffman Company was not paid to the defendant, but an equivalent amount. The plaintiff could not adopt or ratify the payment and pursue the defendant because he neither represented nor assumed to represent the plaintiff, and the payment was not in specie so that the res could be followed. Welker is still indebted to the plaintiff and the defendant is apparently indebted to Welker, but he owes the plaintiff nothing and the recovery against him cannot be sustained.

Neither the decree for reformation nor the judgment for money was warranted by the facts found or by any view of the evidence. The judgment appealed from must, therefore, be reversed and a new trial granted, with costs to abide the event.