Grieve v. Grieve

• Decision Date: 15 April 1907
• Citation: 89 P. 569,15 Wyo. 358
• Parties: GRIEVE v. GRIEVE ET AL
• Court: Wyoming Supreme Court

89 P. 569

15 Wyo. 358

GRIEVE v. GRIEVE ET AL

Supreme Court of Wyoming

April 15, 1907

ERROR to the District Court, Natrona County, HON. CHARLES E CARPENTER, Judge.

Action for the reformation of a written contract and its enforcement according to the agreement claimed to have been actually entered into. The material facts are stated in the opinion.

Modified and as modified affirmed.

Fred D Hammond, for plaintiff in error.

The defendants in error do not claim that the plaintiff in error was guilty of fraud, or that there was any trust relationship existing between them at the time of making the contract neither do they claim that the mistake was the mistake of one side, but they claim that the mistake was mutual. This was the theory upon which the case was tried. There is an abundance of authority as to the right of a court of equity to reform a written contract in case of a mutual mistake clearly established; but no authority permitting such reformation on the verbal testimony of one of the parties, and thus to make a new contract for all the parties. The mistake, to authorize reformation, must be mutual, and proven by clear, satisfactory and conclusive evidence. (Henderson v. Stokes (N. J.), 8 A. 718; Fehlberg v. Cosine (R. I.), 13 A. 110; Sparl v. Ins. Co., 19 F. 14; Rawson v. Lyon, 23 F. 107; Cummins v. Monteith (Ia.), 16 N.W. 591; Watchendorf v. Lancaster (Ia.), 14 N.W. 316; 16 N.W. 533; Fritzler v. Robinson (Ia.), 31 N.W. 61; House v. Austin (Ida.), 10 P. 37; Bodwell v. Heaton (Kan.), 18 P. 901; Ahlborn v. Wolf (Pa.), 11 A. 799; Fritz v. Fritz, 102 N.W. 706; Ford v. Joyce, 78 N.Y. 618; 66 Md. 552; 5 L. R. A., 159, note; King v. Holbrook, 63 P. 654; Bank v. Berton, 53 P. 216.) Equity will not relieve against mistake, if the party could by reasonable diligence have ascertained the real facts, nor where the means of information are open to both parties, and no confidence is reposed. (2 Pom. Eq. Jur., 856; 2 Estee's Pl., 2801; 2 Story's Eq. Jur., 22, 190.) Affixing a signature to a contract is a conclusive presumption, except as against fraud, that the signer read, understood and assented to its terms. (Crim v. Crim, 162 Mo. 544; Fivey v. R. R. Co., 67 N.J.L. 627; In re Greenfield's Est., 14 Pa. St. 491; Van Deventer v. Van Deventer, 46 N.J.L. 460; Upton v. Tribilcock, 91 U.S. 45; Vickers v. R. R. Co., 71 F. 139; Wallace v. R. R. Co., 67 Iowa 547; Chu Pawn v. Irvin, 31 N.Y.S. 724; Fonseca v. Cunard, 25 Am. St. 660; Ins. Co. v. Wharton, 59 Am. St. 129.)

The evidence as to the precise terms of the agreement as claimed by defendants in error is very slight and inconclusive. It rests upon the testimony of one only of the parties, and is contradicted by plaintiff in error. The contract is not unconscionable.

John W. Lacey and John M. Hench, for defendants in error.

The contract as written was unconscionable, judged by its results, and the custom of the business. The mutual mistake to justify the reformation of a contract may be proved by parol evidence, and the proof is not required to be so strong as to remove all reasonable doubt. (Southard v. Curley, 134 N.Y. 148; Warrick v. Smith, 36 Ill.App. 619; Leitensdorfer v. Delphy, 15 Mo. 160; Bldg. Asso. v. Assur. Co. (Neb.), 102 N.W. 246; Mikiska v. Mikiska (Minn.), 95 N.W. 910; Kammermeyer v. Hilz (Wis.), 92 N.W. 1107; Topping v. Jennette (Neb.), 90 N.W. 911; Bank v. Taylor, 76 N.Y.S. 790; Merchant v. Pielke (N. D.), 82 N.W. 878; Miller v. Morris (Ala.), 27 So. 401; Johnson v. Crutcher, 48 Ala. 368; Tyson v. Chestnut, 100 Ala. 571; Smith v. Allen, 102 Ala. 406; Campbell v. Hatchett, 55 Ala. 549; Turner v. Kelly, 70 Ala. 85; Littlejohn v. Creamery Co. (S. D.), 85 N.W. 588; Jenner v. Brooks (Conn.), 59 A. 508; 1 Story's Eq. Jur. (13th Ed.), 153; Meyer v. Lathrop, 73 N.Y. 315; Smith v. Jordan, 13 Minn. 264; Fish v. Ball (W. Va.), 12 S.E. 856; Dietz v. Ins. Co., 8 id., 616; 2 Pom. Eq. Jur., 862; Sampson v. Mudge, 13 F. 260; Ivinson v. Hutton, 98 U.S. 79; Goff v. Jones (Tex.), 8 S.W. 525; Kitchens v. Usry (Ga.), 48 S.E. 945; Nutall v. Nutall (Ky.), 82 S.W. 377; Scraper Co. v. Stickelman (Ia.), 98 N.W. 139; Jones v. Warren (N. C.), 46 S.E. 740; Forester v. Van Auken (N. D.), 96 N.W. 301; Goode v. Riley, 153 Mass. 585.)

The court here sits solely as a court of review, and, though the case may involve equitable jurisdiction, the evidence is not to be looked at as upon a trial de novo, but the rule applies that the weight of evidence will not be considered where it is conflicting. Manifest error must be shown, and an affirmance will result unless it appears that the decision upon the facts is clearly wrong. (Horn v. State, 12 Wyo. 80; Bank v. Coal Co. (Pa.), 59 A. 484; Herlihy v. Coney (Me.), 59 A. 952; Evans v. Woodsworth (Ill.), 72 N.E. 1082; Spacy v. Ritter (Ill.), 73 N.E. 447; Robertson v. Moore (Ida.), 77 P. 218; Gordon v. Richardson (Mass.), 70 N.E. 1027; Dickinson v. Todd, 172 Mass. 183; Lurie v. Sabath (Ill.), 70 N.E. 323; Heyman v. Heyman (Ill.), 71 N.E. 591; Wolfe v. Bank (W. Va.), 47 S.E. 243; Murphy v. Da Foe (S. D.), 99 N.W. 86; Jayne v. Anway, 81 N.Y.S. 821 (71 N.E. 1132); Willey v. Clements (Cal.), 79 P. 850; Board v. Irvine, 126 F. 689; Travelers, &c., v. McAdam, 125 F. 358; Ginn v. Cannon (Ga.), 46 S.E. 631.) These authorities are all cases of appeal, and not proceedings in error. In this state there is no longer an appeal to this court. Every case comes up on error, and distinctions between actions at law and equity are abolished; the rule stated is, therefore, plainly controlling. (Clayton v. Freet, 10 Ohio St. 544; Kimball Co. v. Payne, 9 Wyo. 441; Conway v. Merc. Co., 6 Wyo. 468.) The evidence sufficiently establishes the mistake. The one party testified to a conversation wherein the plaintiff in error conceded the mistake. The latter merely denies that a conversation about the matter occurred. It is, therefore, a case where one party remembered the facts, and the other did not. The parties here are relatives, and the defendants in error relied upon the honesty of the other party, and his promise to correct the mistake in the contract.

Fred D. Hammond, for plaintiff in error, in a reply brief, cited the following authorities upon the question of the result of the lack of diligence of defendants in error in examining the contract before signing. (Con v. Hagan, 55 S.W. 325; Chatham v. Jones, 7 S.W. 600; Taylor v. Fleckenstein, 30 F. 99; Bowers v. Thomas, 22 N.W. 710; Brooks v. Mathews, 3 S.E. 627; Warden v. Reser, 16 P. 60; Wilson v. Moriarty, 26 P. 85; Glenn v. Statler, 42 Iowa 107; Snyder v. Ives, 42 Iowa 157; Johnson v. Donivan, 17 Ill.App. 59; Kennerty v. P. Co., 55 Am., 669; McCormick v. Molburg, 43 Iowa 56.) And the following as to denial of reformation upon conflicting evidence. (Goeke v. Rodgers, 86 S.W. 837; Coleman v. Ins. Co., 82 S.W. 616; McGuigen v. Gaines, 77 S.W. 52.) It was also contended that the code does not contemplate the joinder of actions equitable in nature with actions in tort, citing Thompson v. Bank, 61 How. Pr., 163; and that the question can be raised under the objection that the petition does not state facts sufficient to constitute a cause of action, citing Paddock v. Somes, 10 L. R. A., 254.

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

The defendants in error (hereinafter called defendants) brought this action in the District Court of Natrona County against the plaintiff in error (hereinafter called plaintiff) for the reformation of a written contract; for the enforcement of said contract as the defendants claim it actually was and should have been expressed in the writing; and for an accounting under the contract.

The contract was for the leasing of certain sheep, on shares, by the plaintiff to the defendants, and was for the term of three years, commencing October 28, 1899. Among other things, the contract provided that the plaintiff was to have all the wether lambs during the term of the lease, and the defendants were to return to the plaintiff at the expiration of the lease the same number of ewes as they received at the commencement of the lease. The contract then provides: "After fulfillment and at the expiration of this lease, all the increase of ewes and ewe lambs are to be divided equally between the parties of the second part and first part, one-half to each party." It is alleged by the defendants that the contract as actually made between the parties was, that they were to have all of the ewe increase instead of one-half of the same, as it is written in the contract; and that, by the mutual mistake of the parties, it was made to read that the defendants were to have one-half instead of all of the ewe increase. The plaintiff in his answer denied that any mistake was made in reducing the contract to writing, and alleges that the contract was properly and correctly reduced to writing and that said written agreement was the actual and only agreement existing between the parties.

The cause was tried to the court without a jury and the court found generally in favor of the defendants, and also found "that the written contract as alleged and set forth in plaintiff's petition does not express the contract entered into between the said respective parties thereto, and that a mistake was made in reducing said contract to writing, and that said contract should be reformed and corrected so that the actual contract that was entered into and intended to be entered into by the said parties can be enforced by the court. That the language of said contract so reduced to writing and signed by the respective parties, which partly reads as follows: 'After fulfillment and at the expiration of this lease, all the increase of ewes and ewe lambs are to be divided equally between the parties of the second part...