General Refractories Co. v. Sebek

• Decision Date: 20 November 1931
• Citation: 44 S.W.2d 60,328 Mo. 1143
• Parties: General Refractories Company, Appellant, v. Steve Sebek, Frances Sebek, Frank A. Toelke and American Refractories Company
• Court: Missouri Supreme Court

44 S.W.2d 60

328 Mo. 1143

General Refractories Company, Appellant, v. Steve Sebek, Frances Sebek, Frank A. Toelke and American Refractories Company

Supreme Court of Missouri

November 20, 1931

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

Affirmed.

Leslie B. Hutchison and James Booth for appellant.

(1) It was not necessary in order to establish a mistake in the lease 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 the contents of the lease and supposed it correctly embodied the agreement, when, in fact, it did not the mistake 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 showed that both the lessors and the lessee were present when the scrivener prepared the lease, 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 the Supreme Court in an equity case has the duty of weighing evidence and making its own findings of fact, nevertheless it will defer somewhat to findings 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) 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. Sweet v. Owens, 109 Mo. 1; Fanning v. Doan, 139 Mo. 410; Peters v. Schachner, 280 S.W. 424. (3) In determining real agreement of parties, contract in entirety, circumstances calling it into existence, motives of parties and their subsequent conduct in relation to it may be considered. Chandler v. Hale, 268 S.W. 698. (4) In actions for reformations of written instruments for mistake the pleadings must aver the mistake to be mutual, and the evidence thereof must be clear, cogent and convincing. Peters v. Schachner, 280 S.W. 424.

OPINION

Ragland, J.

This is a suit in equity seeking the reformation of a written instrument, a mining lease, on the alleged ground of mutual mistake. After hearing the evidence the circuit court gave judgment for defendants, and this appeal on the part of plaintiff followed in due course. The lease out of which the controversy grows is one which was given by Steve Sebek and Frances Sebek, husband and wife, as lessors, to respondent Toelke, as lessee. The lease recites:

"The Lessors hereby grant unto the Lessee, his successors and assigns, all the fire clay, diaspore and other alumina minerals upon and contained in the tract of land in Canaan Township, Gasconade County, Missouri, and described as follows:

"Part of E 1/2 N. E. sec. 10. 79 acres more or less and N 1/2 N.W. N. W. Sec. 11 20 more or less. No mining and drilling within 200 yd. of any building, all in Twp. 41 Range 5.

"Together with the right to mine and remove said materials and to construct and operate upon said lands, roads, railroads, chutes, bins and other means of transporting these minerals and also minerals and supplies to and from other lands to points of use or shipment, and with further right to erect and operate on said tract of land, all building machinery, tools and appliances required in the mining and preparing for market or use of the fire clay, diaspore, diasporite and other alumina minerals from this land. And with the right to remove all buildings, machinery, tools and appliances in the event that Lessee surrenders this lease as hereinafter provided."

In consideration of such grant the lessee obligated himself to pay certain royalties on the fire clay, diasporite and other alumina materials, "as removed, shipped or used off the premises described." The lease was executed June 13, 1922, and was subsequently assigned by Toelke to the American Refractories Company and by it to the appellant.

The particular clause of the lease which gives rise to the controversy is the one following: "No mining and drilling within 200 yd. of any building." It is the contention of appellant that the term of the contract in that respect which the parties had in fact agreed upon and which they intended should be inserted in the lease was this: No mining and drilling within 200 feet of any building; that the word yards, instead of feet, was inserted through the inadvertence or mistake of the scrivener. Respondents Sebek on the other hand insist that the lease as written correctly sets forth in all respects the agreement of the parties.

Appellant (plaintiff below) in support of its contention offered two witnesses: Toelke and one Remmert. Their testimony, with immaterial matters and repetitions omitted, will be set out, in narrative form in part.

Toelke: Direct-Examination.

In 1922 I lived at Gerald and was engaged in the clay business. I know Steve Sebek and Frances Sebek and did in 1922. On January 13th of that year I went to the Sebek house to take a clay lease on their property. On our arrival Mr. Sebek came to the house.

"Q. Now, was there anything said in the house between you and Mr. Sebek about leasing his property to you, and if so, tell the court what was said? A. Yes, sir. Well, I went over there and asked him whether he had any clay on his place. He said, 'Yes.' I asked him where his pit was. He said, 'Below the house a little piece.' And we walked down to the pit, and when we came back to the house -- on the way back, I talked to him about the clay asking him about the leasing of it, and how he would lease it, and whether he would lease it. He said, yes, he would lease it providing the lease was all right. And we went back to the house. He said he couldn't understant English very plain; his wife could understand better than he could. And we went back to the house and we fixed up the lease. . . .

"Q. What was said about mining close to the house, if anything, there? A. Well, when we drew up this lease, I told him we didn't want any more rights than where the clay was, we usually had in a lease: 'No mining or prospecting done within 200 feet of any building he had on the place.'

"Q. What did he say when you told him that? A. He said he wanted that in there.

"Q. Wanted what in there? A. That we would stay 200 feet from any building. . . . I told him I usually put that in, because if the lease was transferred to somebody else they couldn't mine his buildings. . . .

"Q. Now, did you tell him you would put it in the lease? A. Yes, sir.

"Q. Now, what was said about Mr. Remmert preparing this lease for you? A. Well, I asked Mr. Remmert to write the lease for me, and he said it was all right.

"Q. Who said it was all right? A. Mr. Sebek; he didn't make any objections to it.

"Q. And did Mr. Remmert write the lease? A. Yes, sir.

"(Plaintiff's Exhibit A so marked for identification.) . . .

"Q. Is that the lease that you took from Mr. Sebek that day that you have been testifying about? A. Yes, sir.

"Q. I will call your attention to the exception in the description there, Mr. Toelke, and have you to state whether or not that is the exception that you and Mr. Sebek agreed upon? . . . A. This was read over there twice; I says, 'If this lease isn't satisfactory, I don't want you to sign it, because I don't take a lease unless you are satisfied.' And he said it was all right; he would sign it.

"Q. Look at that exception '200 yards,' and state to the court whether or not that was what was agreed on between you and Mr. Sebek at the time you discussed it. A. It should be 200 feet. . . .

"Mr. Hutchison (Q): I will have you read that exception in the lease, Mr. Toelke. A. (Reading) 'No mining and drilling within 200 yd. of any building.'

"Q. Do you know how that came to be put in there? A. No sir; I don't.

"Q. Who put it in there? A. Remmert, I guess.

"Q. Had there been anything said between you and Mr. Sebek about putting a clause of that kind in there, 200 yards? . . . A. No, sir.

"Q. When did you first learn of this mistake, Mr. Toelke? A. Well, I heard of this about -- I think it was in September, some time.

"Q. What year? A. 1928.

"Q. Did you go and see Mr. Sebek after you learned of this mistake? A. Yes, sir. . . .

"Q. Tell the court what the conversation was there in the house between you and Mr. Sebek. A. I went over to see Mr. Sebek and asked him about this lease, about this mistake being made; in place of being 200 feet it was 200 yards. He said yes, it was a mistake, and he wrote to the company for it to be corrected. I says, 'You haven't any more clay on your place than this pit.' I says, 'You intended for me to have this pit at the time I was taking the lease.' He said, 'Yes,' and that was about all of the conversation we had."

Cross-Examination.

"Q. You say you and Mr. Remmert went to Sebek's house together? A. Yes, sir.

"Q. And there you engaged in a conversation with him about this lease? A. Yes, sir.

"Q. What language did you talk in,...