W. P. Brown & Sons Lumber Co. v. Echols

• Court: Georgia Supreme Court
• Writing for the Court: WYATT, Justice.
• Citation: W. P. Brown & Sons Lumber Co. v. Echols, 36 S.E.2d 762, 200 Ga. 284 (Ga. 1946)
• Decision Date: 16 January 1946
• Docket Number: 15348.
• Parties: W. P. BROWN & SONS LUMBER CO. v. ECHOLS et al.

36 S.E.2d 762

200 Ga. 284

W. P. BROWN & SONS LUMBER CO. v. ECHOLS et al.

No. 15348.

Supreme Court of Georgia

January 16, 1946

Syllabus by the Court.

1. A court of equity will reform a contract of sale when, from mutual mistake or mistake common to both parties, an instrument does not express the true agreement of the parties.

2. Ordinarily the question of duplicity in pleading must be raised by special demurrer, but there is an exception to this rule. Where material averments are made in the alternative or disjunctive, and any one of them is insufficient, the entire pleading is to that extent bad in substance and subject to general attack by demurrer or motion.

John H. Echols, Sarah Echols, W. K. Beavers, Mary B. Weems, and Rio Beavers, filed a petition against W. P. Brown and Sons Lumber Company, alleging in substance: that the plaintiffs own an individed seventeen-eighteenths interest in a described tract of land; that on June 17, 1941, the plaintiffs executed and delivered to the defendant company for a valuable consideration, a timber deed conveying all timber on the described land; that, prior to the execution of the deed, the plaintiff John H. Echols was approached by one Henry McWhorter, an agent and representative of the defendant company, and negotiations were entered into respecting a sale of the timber; that thereafter McWhorter sent for one Gray, who was also an agent and employee of the defendant company, and Gray cruised the timber; that thereafter Gray and the plaintiff John H. Echols entered into an oral agreement by the terms of which it was agreed that the plaintiffs would sell to the defendant 'all the pine timber located on said lands which would measure eight inches or more at the butt except sixteen acres of land on which is located the home place, and being that sixteen acres more or less, embracing the house and spring and clearly marked, * * * it being specifically understood and agreed that said sixteen acres was excepted from said sale and was not to be conveyed, and the boundaries thereof were pointed out to the said Gray and it was so understood by him'; that, after entering into the oral agreement, the plaintiffs were told by Gray to be at the office of the attorney for the defendant company on a designated date, and on the date designated the plaintiff John H. Echols, who is seventy-five years of age and at the time and prior thereto was sick and in bad health and the plaintiff Sarah Echols, who is sixty-six years of age and at the time and prior thereto was sick and in bad health went to the office of the named attorney, who had never been present at any coversation or conference between the parties and who received any information he had as to the drawing of the timber deed from the defendant; and when they arrived at the office of the attorney, Gray was not present, and after they had waited for Gray for several hours, and until night, they were told that Gray did not have to be present and for them to go ahead and sign the deed; that at that time they were 'completely exhausted from waiting and were in a hurry to get back to their home and they signed said deed, believing that it conveyed the timber on the lands and agreed to by the said Gray, and that the same was never read to them, and that neither of said parties knew that it contained' a description of the 16 acres excepted from the sale; 'that the plaintiff John H. Echols was in such condition that he was unable to sign his own name but made his mark thereto'; that at the time the deed was signed by the plaintiffs, John H. Echols and Sarah Echols, the deed was not read to them and they in good faith believed that the writing contained the contract and agreement made between the parties and did not convey the 16 acres, and 'on account of their age, illness, infirmity, and almost complete physical exhaustion in waiting to sign and execute said deed, that they were incapable of understanding its contents, and in their hurry to get away from Summerville and back to their home in the country before dark, they signed the same.'

The petition further alleged that 'the execution of said deed was through a mutual mistake of both parties, arising out of the misunderstanding of the scrivener in that he simply copied the description in the old deed whereby petitioners obtained title to said land, and failed to except said sixteen-acre tract, or that the agent and employees of the defendant misrepresented the agreement and contract between the parties to the said Brinson and instructed him to draw said deed, following the description in the deed which was turned over to the defendant by petitioners for the purpose of checking title thereto'; that the defendant did not attempt to cut any timber on the 16-acre tract until all timber had been cut and removed from the remainder of the land, and then for the first time did the plaintiffs know that the defendant was claiming to own the timber on the 16-acre tract; that all negotiations for the sale of the timber were handled for all the plaintiffs by the plaintiff John H. Echols, and the other plaintiffs were not present at the time the plaintiffs, John H. Echols and Sarah Echols, signed the deed, but signed the deed on other occasions, not knowing that the deed did not represent the contract and agreement made between the parties. The prayers of the petition were for temporary and permanent injunctions, a reformation of the deed so as to exclude from its terms the 16-acre tract described in the petition, and for general relief.

The defendant demurred generally to the petition on the grounds that...