Castle v. Gleason

• Decision Date: 24 May 1913
• Citation: 141 N.W. 516,31 S.D. 590
• Parties: W. D. CASTLE, Plaintiff and respondent, v. JOHN GLEASON, Defendant and appellant.
• Court: South Dakota Supreme Court

31 S.D. 590, 141 N.W. 516 (1913)

W. D. CASTLE,

Plaintiff and respondent,

v. JOHN GLEASON,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Union County, SD

Hon. Joseph W. Jones, Judge

Affirmed

R. W. Ellis, W. E. Gantt

Attorneys for Appellant.

Thomas McInerny

Attorneys for Respondent.

Opinion filed May 24, 1913

WHITING, P. J.

Plaintiff, claiming that the defendant had wrongfully converted certain corn upon which he held a chattel mortgage, brought this action to recover the value of such corn. Verdict and judgment being in favor of the plaintiff and a new trial having been refused, defendant appealed from such judgment and order denying a new trial.

Respondent contends that there is no question properly before us for consideration, because no bill of exceptions nor statement of the case was properly and timely settled, and because no proper specifications of errors or of the particulars wherein the evidence was claimed to be insufficient were properly saved and preserved in a settled, record. We have carefully considered the record and find respondent's contention unfounded; the record was settled by the trial court within the time as extended by such court, and in such record we find specifications of errors and of particular, wherein it is claimed that the evidence was insufficient to support the verdict and the judgment, which specifications present the same questions presented to the trial court upon the motion for a new trial made upon the minutes of the court. The assignments of error, presented in the printed record in this court, follow such specifications preserved in the settled record.

But two questions are before us for determination upon the merits of this appeal, to wit: (1) Did the trial court err in receiving certain evidence offered by plaintiff? (2) If the receiving of such evidence was error, was it prejudicial error?

Plaintiff's cause of action was based upon a chattel mortgage given to him by one Warren. This mortgage, as written, described "all the crops that grow on the above-described land in the year 1912," while the action was brought for the conversion of corn grown in the year 1911. The complaint alleged that the writing of the figure "2" instead of the figure "1" was a "clerical error," and that both parties to the mortgage intended and supposed that the same described the crop of 1911. The complaint set forth other facts tending to show the real intent of the parties, and also alleged scienter on the part of defendant. No reformation of the mortgage was sought, and the mortgagor was not made a party to the action. Evidence supporting the above allegations of the complaint was received over timely and proper objections by defendant, and the effect of such evidence was also questioned by motion for directed verdict. The chattel mortgage itself and proof of its filing were received in evidence.

While evidence dehors a written instrument may often be admissible to explain ambiguities therein or to aid defective descriptions, yet such evidence is inadmissible where its effect would be to reform such instrument, except where reformation is proper and has been sought.

It is certainly fundamental that where one seeks to recover in a cause of action based upon a written instrument, he must rely upon the writing as it was executed, or else must seek a reformation thereof; therefore, in the action before us, plaintiff was bound to recover, if at all, upon the chattel mortgage as executed and filed, or else procure a reformation thereof and prove that defendant had. knowledge or notice of the error in the instrument.

Respondent contends that the error in the chattel mortgage was a "clerical" error, and that mere clerical errors are not the subject of reformation in a court of equity. He cites the case of Carr v. Williams, 10 Ohio, 305, 36 Am.Dec. 87, wherein it is held: "Mere clerical errors cannot be corrected in equity, because there is no defect to be rectified; the remedy at law is perfect"--and the case of Sprague v. Edwards, 48 Cal. 239, wherein it was said: "When it is apparent upon the inspection of a contract that, by a clerical error, a wrong word has been inserted, it will be read, in an action at law, as though the right word was in its place, and resort need not be had to a court of equity for a reformation of the instrument." These cases state a sound rule...