Coleman v. Illinois Life Ins. Co.

• Decision Date: 03 November 1904
• Parties: COLEMAN et al. v. ILLINOIS LIFE INS. CO.
• Court: Kentucky Court of Appeals

82 S.W. 616

COLEMAN et al. v. ILLINOIS LIFE INS. CO.

Court of Appeals of Kentucky.

November 3, 1904

Appeal from Circuit Court, Jefferson County, Chancery Division.

"Not to be officially reported."

Action by Mary A. Coleman and another against the Illinois Life Insurance Company. Defendant had judgment, and plaintiffs appeal. Reversed.

Bodley Baskin & Flexner, for appellants.

Du Relle & McHenry and Henry W. Price, for appellee.

SETTLE J.

The appellants, Mary A. Coleman and Isabel C. Walker, owned a parcel of real estate in Chicago, Ill., known as the "Oriental Building," which they exchanged for a lot and building in Louisville, Ky. owned by the appellee Illinois Life Insurance Company. The Chicago property was valued at $470,000, and the Louisville property at $200,000 and the difference between these amounts, $270,000, was paid appellants by appellee. Deeds of conveyance passed between the parties, each containing a covenant of general warranty. Negotiations for the exchange, mainly by correspondence, were for some time in progress between brokers representing the parties, which finally resulted in an agreement, December 31 1902. At that time a meeting took place at the office of Geo. W. Cobb & Co., real estate brokers, who represented appellants in the negotiations, which was attended by the brokers representing appellee, by appellant Isabel C. Walker, Scott, the attorney in fact of appellant Mary A. Coleman, then a resident of California, Judge Otis, appellants' counsel, C. S. Ennis, who also assisted in effecting the exchange of property, and Boyles, a friend of appellants. At this meeting a paper intended to evidence the contract was drawn up and signed by the appellants. This paper, in the record called "Stevens Exhibit No. 1," was taken by appellee's agent, Trainor, to Stevens, its president, and was by him signed, but it was never returned to appellants or delivered to Geo. W. Cobb & Co., who, according to its provisions, were to hold it. Mr. Long, the chief counsel for appellee, at the instance of its president, Stevens, drew up another contract, which bears date January 2, 1903, and is referred to in the evidence as the "Onderdonk contract." On the day it was written, appellant Isabel C. Walker, Scott, the agent of appellant Mary A. Coleman, Judge Otis, the counsel of appellants, and Trainor, appellee's agent, met in the office of Cobb & Co. The Onderdonk contract was then signed by appellant Walker and Scott, attorney in fact for the appellant Coleman. The paper was taken by Trainor to Stevens, who signed it for appellee, after which it was returned to Cobb & Co., to be held by them until the deeds were executed according to its terms. The deeds, though delivered January 16, 1903, were dated as of December 31, 1902. At that time there were liens upon the Louisville property for taxes for the year 1903, which were assessed in September, 1902. These taxes--$2,186.69 due the city of Louisville, and $767.38 due the county of Jefferson and state of Kentucky, amounting in the aggregate to $2,954.07--appellants were later compelled to pay because of the refusal of appellee to discharge them. Appellants thereafter instituted this action against appellee for the breach of the warranty contained in the deed, laying their damages at the amount of the taxes paid by them, with interest from the time of payment. The nonresidency of appellee, and the fact of its owning property in this state, furnished grounds for the attachment issued in the action. The answer and counterclaim of appellee denied the breach of the warranty complained of, and averred a mistake in the deed, in that it failed to require (1) that appellants should take the property thereby conveyed subject to outstanding leases; (2) that appellants should accept the property subject to all taxes; (3) subject to all unpaid special taxes and assessments; and (4) subject to the right of appellee to occupy certain rooms in the building as offices for its local agents. The prayer of the answer and counterclaim asks that the deed be reformed so as to supply the alleged omissions. The affirmative averments of the answer and counterclaim were denied by reply. After the taking of proof and upon submission of the case, judgment was rendered by the chancellor dismissing the petition and granting the reformation of the deed as prayed by appellee, and of that judgment appellants complain.

It is disclosed by the record that upon the delivery of the deed the leases that existed upon the property were assigned to appellants, and that they are performing in good faith the first requirement alleged to have been omitted from the deed. The third omission complained of is unimportant, as there were no unpaid special taxes or assessments against the property, and the fourth omission is equally unimportant, as the answer admits the prompt execution by appellants of the lease of the office rooms to appellee, and that its officers are now occupying them. It is manifest, therefore, that no cause is shown for reforming the deed upon the first, third, and fourth grounds.

The second alleged omission, that appellants should have been required to assume the taxes for 1903, and that the deed should have so recited, presents the only real ground of controversy between the parties. In other words, the points of controversy are: First. Did the real contract between the parties require appellants to accept the Louisville property subject to the taxes for 1903, and was that requirement omitted from the deed by mistake? Second. If there was a mistake, was it mutual? These questions will be more fully considered...