Hancock v. Dodge

• Decision Date: 16 January 1905
• Citation: 37 So. 711,85 Miss. 228
• Court: Mississippi Supreme Court
• Parties: WILLIAM H. HANCOCK v. HENRY C. DODGE

37 So. 711

85 Miss. 228

WILLIAM H. HANCOCK v. HENRY C. DODGE

Supreme Court of Mississippi

January 16, 1905

FROM the chancery court of, second district, Coahoma county, HON CAREY A. MOODY, Chancellor.

Dodge the appellee, was complainant, and Hancock, appellant defendant in the court below. From a decree overruling defendant's demurrer to complainant's bill of complaint, the defendant appealed to the supreme court.

Affirmed, with sixty days to answer after mandate filed below.

Maynard & Fitzgerald, for appellant.

The written instrument sought to be reformed is a mere offer of sale, and not a contract. Appellee seeks to avoid that by calling it a "memorandum" of the contract, which however, is not shown by the bill to have been agreed on between the parties to evidence the completed oral contract between them.

The paper shows on its face that defendant offered to sell his interest at $ 15 per acre. It does not show, however, that he would accept $ 15 per acre from "a purchaser to be found by complainant.' But even if it did, it was an offer merely, and not a contract. It was not accepted nor signed by complainant, and hence was not binding on him; and no consideration was paid by him to the defendant. This offer could not become a contract until accepted by the complainant. It was not accepted, because he never tendered the money nor offered to do so. The assent of the minds of both parties is necessary to constitute a contract, hence it follows that the person who makes an offer can at any time recall it before acceptance. Where time is not named in an offer within which acceptance may be given, the offer must be taken advantage of within a reasonable time, else it expires or become void. Echols v. Railroad Co., 52 Miss. 616.

A court of chancery will not interfere to reform a written contract where it is such as the parties themselves designed it. "If they voluntarily chose to express themselves in the language of the written contract, they must be bound by it; for there is no general rule better settled, nor more just in itself, than that parties who would enter into written contracts must be governed by them as made, according to their true intent and meaning, and must submit to the legal consequences arising from them." Williams v. Hamilton, 65 Am. St. Rep., 485, note and authorities.

The bill charges that the defendant intended to add other matters to his memorandum. This court cannot consider that. The written contract, being clear, definite, and unambiguous, precludes all inquiry as to other intentions than those expressed in the written instrument.

If a party to a written contract, through his own negligence, acts thereunder, without knowing or understanding its contents when he has an opportunity to do so, a court of equity will not reform it so as to make it express his alleged understanding of what it was to contain; for an error which is the result of inexcusable negligence is not a mistake from the results of which a court of equity will grant relief. He who asks relief on the ground of mutual mistake shall show that he has exercised at least the degree of diligence which may be fairly expected from a reasonable person. Williams v. Hamilton, 65 Am. St. Rep., 500, note and authority; Bispham's Prin. of Eq., sec. 17; Jurgensan v. Carlson, 97 Iowa 627.

It is the duty of a party in the absence of fraud to acquaint himself with the terms of a written contract to which he is a party before he enters into it. 27 L. R. A., 322; Barnard v. Kellogg, 77 U.S. 162; Gilbert v. McInnis, 114 Ill. 28; Tilly v. Chicago, 103 U.S. 162 (26 L. ed., 377); Wharton Ev., secs. 961, 1028, 1029, 1243; Pindar v. Resolute Ins. Co., 47 N.Y. 114; Linington v. Strong, 111 Ill. 152.

A written contract cannot be reformed by oral testimony establishing a verbal contract directly in conflict with the terms of The written contract; such evidence is only admissible to explain, add to, or modify what is written, and never to contradict its express terms. Barnard v. Kellogg, 77 U.S. 162.

To justify a reformation of a written contract on the ground of mistake unmixed with fraud, the authorities are unanimous that the mistake must be mutual, or common to both parties. Williams v. Hamilton, 65 Am. St. Rep., 475, and note on p. 490.

In order to justify a decree for reformation in cases of pure mistake, it is necessary that the mistake should have been mutual, and that the alleged intention to which he desires the writing to be made conformable should be continued concurrently in the minds of both parties, down to the time of its execution. Bispham's Prin. of Eq., sec. 469.

J. W. Cutrer, for appellee.

There is no dispute as to the terms and conditions of the contract entered into between the appellant and the appellee; the demurrer admits all the allegations of the original bill of complaint. So that, having determined that the appellant and the appellee entered into a contract for the sale by the appellee (Dodge) of appellant's (Hancock's) land, the terms of which are not disputed by either party, and having further determined that there is a clear and unambiguous contract in existence agreed to by both sides, the question to be settled by this appeal is, Has the appellee the right to any, the least, reformation of his writing so that it shall conform to the common standard, the contract?

It will be observed that there is no demand that the contract itself shall be reformed so that the parties thereto shall be restored to all their rights and privileges. The terms of the contract are settled, and the question now to be decided is whether or not this little slip of paper, containing a couple of lines of writing, shall be put in such shape that it shall conform to the undisputed...