Byers v. Buettner

• Decision Date: 03 December 1945
• Docket Number: No. 20615.,20615.
• Citation: 191 S.W.2d 339
• Parties: WILLIAM E. BYERS, v. CLARENCE M. BUETTNER AND HELEN M. BUETTNER.
• Court: Missouri Court of Appeals

191 S.W.2d 339

WILLIAM E. BYERS, v. CLARENCE M. BUETTNER AND HELEN M. BUETTNER.

No. 20615.

Kansas City Court of Appeals. Missouri.

December 3, 1945.

Appeal from Jackson County Circuit Court. — Hon. Emory H. Wright, Judge.

AFFIRMED.

David M. Proctor for appellants.

(1) The high remedy of reforming a written instrument is granted only when the evidence of a mutual mistake is clear, cogent and convincing, leaving no room for speculation or uncertainty. Moran Bolt & Nut Mfg. Co. v. St. Louis Car Co., 210 Mo. 715, l.c. 729, 109 S.W. 47; Sweet v. Owens, 109 Mo. 1, l.c. 7, 18 S.W. 928, 929; 53 C.J. 1030, Par. 199; Fanning v. Doan, 139 Mo. 392, l.c. 410, 41 S.W. 742, l.c. 747; Ford v. Delph, 203 Mo. App. 659, 220 S.W. 719; Peters v. Schachner, 312 Mo. 609, 280 S.W. 424, l.c. 429; Driskill v. Ashley 259 Mo. 1, l.c. 15, 167 S.W. 1026; Anderson v. Stewart, 281 Ill. 69, 117 N.E. 743; Altman v. Alcolite, Inc., 13 F. Supp. 393; Webster's International Unabridged Dictionary, Second Edition, p. 499. (2) A party seeking reformation of a written instrument has the burden, which never shifts, and must be sustained by evidence showing more than a mere probability of mutual mistake; even a preponderance of the evidence is not sufficient. Parker v. Vanhoozer, 142 Mo. 621, l.c. 627, 44 S.W. 728; Philippine Sugar Estates Development Co. v. Government of Philippine Islands, 247 U.S. 385. (3) There is a presumption that all written instruments, including deeds to real estate and receipts, express the true and full intention of the parties. State ex rel. Frank v. Adm'r of Frank et al., 51 Mo. 98; Kohnke v. Kohnke (Mo.), 250 S.W. 53, l.c. 57. (4) In weighing the evidence in a suit for reformation of a written instrument all surrounding facts, circumstances and conditions, as well as the oral testimony must be considered. Chandler v. Hale, 219 Mo. App. 133, 268 S.W. 691, l.c. 697. (5) If there is evidence of misrepresentation as to a material fact that is false or if the evidence discloses there was no mutual mistake but a mistake made by one of the parties only to a transaction, the proper remedy is a suit for recision and not for reformation. Wall v. Mays et al. (Mo.), 210 S.W. 871; Bartlett v. Brown, 121 Mo. 353, l.c. 362, 25 S.W. 1108; Crouch v. Thompson, 254 Mo. 477, l.c. 487, 162 S.W. 149; Stephens v. Stephens (Mo.), 183 S.W. 572; Hearne v. Marine Ins. Co., 87 U.S. 488; Southern Surety Co. v. U.S. Cast Iron Pipe & Foundry Co., 13 F. (2d) 833; Spare v. Home Mut. Ins. Co., 19 F. 14, l.c. 19; Webster's International Unabridged Dictionary, Second Edition, p. 520, p. 2114; 53 C.J. 1037, Par. 202; Miller v. St. Louis & K.C. Ry. Co., 162 Mo. 424, 63 S.W. 85; Parker v. Vanhoozer, 142 Mo. 621, l.c. 630, 44 S.W. 728, supra.

Wm. G. Boatright for respondent.

(1) This court will defer to the findings of the trial court insofar as those findings are based on oral testimony where the witnesses appeared in person and opportunity was afforded the trial court to observe their demeanor. Sinnett v. Sinnett (Mo.), 201 S.W. 887; Keener v. Williams, 307 Mo. 682, 271 S.W. 489; Bourg v. Manufacturers' Railway Co. (Mo.), 245 S.W. 43; McFarland v. Bishop, 282 Mo. 534, 222 S.W. 143; Gill v. Ferris, 82 Mo. 156; Schilb v. Pendleton, 76 Mo. App. 454. (a) Reformation will not be denied because there is conflicting testimony. Fanning v. Doan, 139 Mo. 392, 41 S.W. 724; Leitensdorfer v. Delphy, 15 Mo. 16D; Reformation of Instruments, 45 Am. Jur., Sec. 117. (2) Respondent was entitled to have his vendor's lien established. Mollett v. Beckman (Mo. App.), 78 S.W. (2d) 886.

DEW, J.

This is a suit in equity in two counts. In the first count of plaintiff's petition he alleged the making of a contract of sale to defendants of plaintiff's residence property described; that the purchase price provided therein was $23,665, of which $1000 in cash was paid at the execution of the contract, as agreed. The petition describes the closing of the transaction, at which time, it is alleged, receipt was given for the balance of the purchase price and a warranty deed was delivered, since recorded, reciting consideration of $1.00 and other valuable considerations, duly received; that at the closing of the deal, currency purporting to be the balance of the sale price, was handed to the plaintiff by defendants and included a package of bills, all of the same size, shape, color and general appearance, represented and stated by defendants to contain 22 bills of $1000 denomination each; that all the parties counted the same and found the package to contain 22 in number, but that a few minutes after the defendants had left plaintiff's office with receipt and deed aforesaid, plaintiff discovered, on recount, that in the package represented to contain only $1000 bills, one was found to be of $100 denomination; that promptly on the same day and at divers times thereafter plaintiff requested defendants to rectify said mistake and to pay to plaintiff the remaining $900 of said purchase price, which defendants have refused and failed to do. Plaintiff prays reformation of said receipt to show receipt of $21,765 on March 14, 1944, instead of $22,665, and that the warranty deed be reformed to show that of the purchase price of $23,665, plaintiff had received $22,765.

In the second count of plaintiff's petition, by reference, he restates the facts of Count I, and alleges that by reason of said warranty deed, the defendants are now vested with legal title to the real estate in question, have possession thereof, and that the plaintiff is entitled to a vendor's lien on said property to secure the amount of $900 due him as the balance of the unpaid purchase price, with interest from March 14, 1944. Plaintiff accordingly prays for a decree finding $900 due on the agreed purchase price, and judgment for same, and that the decree further declare a vendor's lien in plaintiff's behalf on said real estate for the payment of said $900, with interest, aforesaid, and that the court order and adjudge said lien to be foreclosed as the court shall direct to satisfy same, together with costs and general relief.

Defendants, by their answer to plaintiff's Count I, allege the payment of $1000 in cash at the execution of the contract, the payment of $22,665 in currency to plaintiff at the closing of the deal, the full balance due, but deny that they at that time represented or stated to the plaintiff the amount of currency in the package of bills delivered to the plaintiff. Defendants further deny any mistake in counting the aforesaid package of bills or currency, and allege that on the day in question they counted out and obtained from their safety deposit box and handed and delivered to the plaintiff the total sum of $22,665 in currency; that said currency was three times counted by the plaintiff in their presence, and in the presence of others; that whatever loss occurred took place after the delivery of said currency by the defendants to the plaintiff. Defendants admit plaintiff's demand on them for further payments of $900, and their refusal to pay the same, and deny plaintiff's right to reformation of receipt and deed as prayed for in the petition.

Defendants' answer to plaintiff's Count II denies that they paid to the plaintiff on March 14, 1944, only $21,765, but alleges that they in fact paid $22,665, making a total of $23,665, the full purchase price agreed upon. They admit being vested with legal title to the property and their possession thereof, and deny plaintiff's right to a vendor's lien for any sum.

Defendants further set up in their answer a counterclaim, alleging that the plaintiff's suit for reformation of receipt and deed described, and for vendor's lien was and is a wrongful, unlawful and malicious slander of defendants' title to said property, whereby defendants have been damaged. Defendants pray for judgment for $2500 actual damages and for $2500 punitive damages.

The court in its decree found that on March 14, 1944, defendants delivered to plaintiff what was represented by them and believed by plaintiff to be $22,665 in currency; that in truth and in fact by mutual mistake by plaintiff and defendants in counting said currency the actual amount so delivered was $21,765, leaving $900 balance due of the agreed purchase price; that the plaintiff, relying and acting upon the belief that said purchase price had been paid, executed and delivered the deed referred to in the pleadings which has since been recorded; that the warranty deed recites payment of the full agreed consideration, and that a receipt contemporaneously given with the deed recited the payment and delivery to the plaintiff on that date of $22,665, balance of the agreed purchase price; that on account of said mutual mistake plaintiff is entitled to have said warranty deed and receipt reformed to speak the truth and have judgment for the balance of the agreed purchase price, and for establishment of vendor's lien on said property. The court found all the issues on both counts of the petition in favor of plaintiff and against defendants, and in favor of plaintiff on defendants' counterclaim, whereupon it was decreed and adjudged on the first count of plaintiff's petition that the the warranty deed and receipt be reformed so as to recite and show that $900 of the agreed purchase price for said property had not been paid, and on the second count it was adjudged that plaintiff have judgment for $900 against the defendants with interest from March 14, 1944, and that a vendor's lien be established in plaintiff's favor on said property for said unpaid purchase price, with interest and costs; that in event said $900, with interest and costs, be not paid within thirty days after the judgment becomes final, said vendor's lien to be foreclosed by sale of said property at public vendue to the highest bidder at the north front door of the Jackson County Court House in Kansas City, Missouri, said sale to be conducted by the sheriff of...