General Refractories Co. v. Howard

• Decision Date: 20 November 1931
• Parties: General Refractories Company, Appellant, v. William E. Howard and American Refractories Company
• Court: Missouri Supreme Court

44 S.W.2d 65

328 Mo. 1139

General Refractories Company, Appellant, v. William E. Howard and American Refractories Company

Supreme Court of Missouri

November 20, 1931

Appeal from Gasconade Circuit Court; Hon. R. A. Breuer Judge.

Reversed and remanded (with directions).

Leslie B. Hutchison and James Booth for appellant.

(1) It was not necessary in order to establish a mistake in the deeds sought to be corrected that it be shown that particular words were agreed upon by the parties as words to be inserted in the instrument, but it is sufficient that the parties had agreed to accomplish a particular object by the instrument to be executed, and that the instrument as executed is insufficient to effectuate the intentions of the parties. Leitensdorfer v. Delphy, 15 Mo. 167; Wolz v Venard, 253 Mo. 82; Dougherty v. Dougherty, 204 Mo. 228. (2) Where, as here, the testimony proved that the parties agreed upon what was to be bought and conveyed, and supposed it correctly described in the deed, the mistake made was not unilateral, but mutual. Dougherty v. Dougherty supra; Maze v. Boehn, 281 Mo. 507; Kanan v. Hogan, 307 Mo. 269; Kidd v. Brewer, 297 S.W. 960; Wilhite v. Wilhite, 284 Mo. 387. (3) Where, as here, the proof shows that both the grantors and the representative of the grantee were present when the scrivener prepared the deed, then the mistake of the scrivener was the mistake of both parties. Bartlett v. White, 272 S.W. 944. (4) This court is not bound by the findings of the trial court, but will determine the facts for itself; and if the findings be against the weight of the evidence this court will reverse it. Gross v. Byler, 297 S.W. 396.

W. L. Cole and T. P. Hukriede for respondents.

(1) Although this court in an equity case has the duty of weighing evidence and making its own finding of fact, nevertheless it will defer somewhat to finding of trial judge, who has opportunity to observe conduct and demeanor of witnesses on the stand and has noted all the surrounding and attending facts and circumstances, outside the mere language of the testimony given. Morris v. Morris, 4 S.W.2d 459. (2) Plaintiff, having had the lease in its possession for several years without asking reformation of an error glaring from its face, may not have it reformed. Implement Co. v. Rogers, 229 S.W. 782. (3) To secure the reformation on the ground of mistake, it must be shown that the mistake is in the terms of the lease and not in the contract. Robinson v. Korns, 157 S.W. 790; Parker v. Vanhoozer, 44 S.W. 728. (4) A court of equity cannot grant reformation of an instrument because the instrument was written under incorrect information. Clark v. Porter, 63 S.W. 89. (5) Written instrument cannot be reformed without proof beyond a reasonable doubt as to the exact mistake and the correction to be made, together with evidence that the mistake was mutual. Crouch v. Thompson, 162 S.W. 149; Steinberg v. Ins. Co., 49 Mo.App. 255. (6) Courts of equity do not grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of evidence, but only upon a certainty of the error. Peters v. Schachner, 280 S.W. 424; Fanning v. Doan, 439 Mo. 410.

OPINION

Ragland, J.

This is a suit in equity to reform two deeds on the ground of mutual mistake. The judgment nisi was for defendants, dismissing plaintiff's bill. From such judgment plaintiff prosecutes this appeal.

The facts lie within small compass. Sometime prior to October 3, 1922, the American Refractories Company through its agents, operating as prospectors, had discovered a body of fire clay on respondent Howard's land in Gasconade County. On the date just mentioned a representative of the Refractories Company went to the Howard land for the purpose of purchasing and securing from the owner a conveyance of the fire clay together with the right to mine and remove it. The location of the clay pit, as it was termed by the witnesses, and which had been discovered by the holes bored in the surface of the ground by the prospectors, was well known to both Krewson, the representative of the Refractories Company, and Howard, the owner of the land. After some negotiations between Krewson and Howard $ 1500 was agreed upon as the purchase price for the fire clay. Thereupon they, with several attendants, proceeded to survey and mark off the land containing the deposit. They began at the southeast corner of respondent Howard's land (the southeast corner of the north half of the north half of the northwest quarter of Section 14, Township 42, Range 5 west) and ran west 1200 feet and from thence north 174 feet, thereby establishing the point of beginning for marking off the boundaries of the land containing the mineral rights to be conveyed. From such beginning point they ran west 250 feet, thence north 250 feet, thence east 250 feet and thence south 250 feet to the beginning. The attendants carried the tape and called the measurements under the directions of Krewson and Howard, the former making notes as the survey proceeded.

When the survey was completed Howard and Krewson went to a bank at Ownesville where the former transacted his business and directed an officer of the bank, who was also a notary public, to prepare a deed. The deed was drawn and executed by Howard and he was paid the $ 1500 by Krewson. The deed described the land as follows:

"All the fire clay, diaspore, diasporite and other alumina minerals in and underlying all that certain tract of land situate, lying and being in the County of Gasconade and State of Missouri, and described as follows:

"Commencing at a point fifteen hundred feet (1500) West and one hundred seventy-four feet (174) North of the southeast corner of the north-half of the north-half of the northwest quarter of Section Fourteen (14) Township Forty-two (42) of Range Five (5)...