Greil v. Tillis

• Decision Date: 24 November 1910
• Citation: 54 So. 524,170 Ala. 391
• Parties: GREIL v. TILLIS.
• Court: Alabama Supreme Court

54 So. 524

170 Ala. 391

GREIL v. TILLIS.

Supreme Court of Alabama

November 24, 1910

Rehearing Denied Feb. 16, 1911.

Appeal from City Court of Montgomery; W. H. Thomas, Judge.

Suit by N. J. Greil against Richard Tillis to reform a contract. From a judgment for defendant, complainant appeals. Affirmed.

The contract referred to was a contract to sell certain personal property situated within the limits of what was then known as "Electric Park," owned by the Montgomery Amusement Company. It is alleged that the stuff was itemized, and an estimate of value placed opposite each item. It is averred that, in drawing the contract, the draughtsman committed a mistake in the description of the property, by adding a general descriptive clause, which is as follows "Together with all other structures, buildings improvements, etc. (except such as are now owned by the Montgomery Street Railway), and all of the amusement devices property, and effects of every character and description whatever, now located and being in said Electric Park"--and this was contrary to the mutual agreement and understanding of the parties to the contract. As amended, the bill sought a rescission on the ground that this interpretation in the contract was a fraud on the complainant, and was not part of the agreement.

J. M Chilton and Coleman, Dent & Weil, for appellant.

Hill, Hill & Whiting, for appellee.

ANDERSON J.

The original bill sought a reformation of the contract of sale because of a mutual mistake, while the amendment is based upon fraud upon the part of the respondent and mistake on the part of the complainant. It cannot be seriously contended that there was a mutual mistake, as the clause of the contract sought to be reformed was inserted by Tillis and for the very purpose of making the sale cover everything in the park except what was owned by the street railway company. It is questionable whether or not Tillis intended to buy all property in the park, all property owned by the amusement company, or only the property inventoried by a list furnished him, and to which he fixed a bidding price per item, and the total almost equaling the consideration of the contract in question when the negotiations were going on, yet it is clear that he intended the contract to be as it is. But, be this as it may, the proof puts the parties upon an equal footing, no disability due to a lack of education or intelligence, no confidential relations between them, and, whatever may have been the motive or intention of Tillis in having the clause inserted, there is nothing to indicate that any fraud misrepresentation, or deceit was practiced by him on Greil, whereby the said Greil was induced to execute the said contract. It is true that Mr. Pomeroy in his excellent work on Equity Jurisprudence (Vol. 2, § 856) criticises, as being too narrow, the rule that, when a mistake is the result of a complaining party's own negligence, he will never be relieved. And our own court, in the case of Kinney v. Ensminger, 87 Ala. 340, 6 So. 72, is inclined to agree with this eminent writer that the rule is too narrow, and holds that it is not every negligence that will operate to bar relief, yet holds that, while courts will so act in granting relief, they will do so with great caution, so as to not unduly...