Clark v. Moru
| Decision Date | 02 April 1963 |
| Citation | 120 N.W.2d 888,19 Wis.2d 503 |
| Parties | Percy A. CLARK et al., Appellants, v. Fred MORU et al., Respondents. |
| Court | Wisconsin Supreme Court |
Vaudreuil & Vaudreuil, Kenosha, for appellants.
Brookhouse & Kupfer, Mittelstaed, Heide, Sheldon & Hartley, Kenosha, for respondents.
The trial court, sitting without a jury, found that there was a unilateral mistake on the part of the plaintiffs as to the location of their western boundary line. Judge Baker also found as a fact that at the time of the closing of the transaction the purchasers accepted the terminology of the deed as the description of the parcel of land being purchased. The trial court further determined that the plaintiffs' mistake as to the location of the western boundary line was not justified.
The foregoing findings cannot be set aside unless they are against the great weight and clear preponderance of the evidence. Estate of Kitz (1961), 13 Wis.2d 49, 58, 108 N.W.2d 116; Weber v. Kole (1959), 7 Wis.2d 107, 108, 95 N.W.2d 784.
We can understand the appellants' side of the story. Mr. Clark was taken to the property by Mr. Moru's agent, and the property he expected to buy had already been staked out and was pointed to by the agent. The portion of land under discussion at that time was the same that Mr. Clark now contends should be awarded to him in these proceedings.
In addition, Mr. Moru's attorney sent to Mr. Clark's attorney a description of the property which conformed to the surveyor's stakes; this fortified Mr. Clark's understanding that he would receive a conveyance that included the 65 foot strip of land which is in question upon this appeal.
However, there is credible testimony that at the closing conference there was discussion as to the amount of land which was to be conveyed. Both the buyers and the sellers were present at the closing conference, with their respective attorneys. Mr. Moru testified that at the closing conference he stated that the amount of land which he was willing to sell for the given price was not the 42 acres which his attorney had previously written about, but rather was only 40 acres. Thereupon the deed was read aloud by Mr. Hammond (Moru's attorney), and when asked how much land that description encompassed, Mr. Hammond answered that it contained 39 3/4 acres.
Mr. Hammond also testified that he stated at the closing conference that the description of the deed took away two acres from the total which had been described in his previous letter to the appellants' attorney.
At the closing of the sale, the appellants' attention was called to the fact that there was to be a change in the amount of property actually being conveyed to them. Undoubtedly, they could have refused to consummate the sale. Their failure to investigate the effect of the change in the description represents a unilateral error on their part. There is no claim of fraud.
There is evidence to sustain the trial court's conclusion that there was neither fraud nor...
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Columb v. Cox
...We do not decide this issue because it is irrelevant to our analysis of the Easement Exceptions.15 The Coxes cite Clark v. Moru , 19 Wis. 2d 503, 506, 120 N.W.2d 888 (1963), for the proposition that this is not a situation where a contract can be reformed because of mutual mistake. See id. ......
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Columb v. Cox
...506, 120 N.W.2d 888 (1963), for the proposition that this is not a situation where a contract can be reformed because of mutual mistake. See id. ("In order to reform a contract on the ground mistake, the general rule is that the mistake must be mutual, or mistake on one side and fraud on th......
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Newmister v. Carmichael
... ... 113; 53 C.J. [Reformation of Instruments], p. 1037 [sec. 202].' ... Judgment affirmed ... --------------- ... 1 Clark v. Moru (1963), 19 Wis.2d 503, 506, 120 N.W.2d 888; Findorff v. Findorff (1958), 3 Wis.2d 215, 224, 88 N.W.2d 327; Langer v. Stegerwald Lumber Co ... ...