Jones v. Warren

• Decision Date: 08 March 1904
• Citation: 134 N.C. 390,46 S.E. 740
• Court: North Carolina Supreme Court
• Parties: JONES. v. WARREN et al.

46 S.E. 740

134 N.C. 390

JONES.

v.WARREN et al.

Supreme Court of North Carolina.

March 8, 1904.

MORTGAGE NOTES — REFORMATION — MUTUAL, MISTAKE—EVIDENCE — SUFFICIENCY— QUESTION FOR JURY—VARIANCE OR CONDITION OF WRITTEN INSTRUMENT.

1. In an action to correct a mutual mistake as to the amount of mortgage notes given for the purchase of land, evidence of declarations by plaintiff, before the papers were drawn, as to the price agreed on, was competent to corroborate his testimony as to the same.

2. An exception to a refusal to nonsuit plaintiff at the close of his evidence is waived by the introduction of evidence by defendant.

3. Where the testimony, if believed, is sufficient to be submitted to the jury, the court should not state that the evidence is not strong, clear, and convincing.

4. Evidence in an action to reform mortgage notes on the ground that by mutual mistake, or the misapprehension or imposition of the draftsman (the defendant), the contract was not correctly reduced to writing, considered, and held sufficient to present a case for the jury.

5. In an action to reform mortgage notes defendant cannot complain that his error in drawing up the same for an amount more than was agreed on, as shown by the evidence, was not charged as a fraud on his part, and that the action was restricted by the complaint and issue, submitted without objection, to an inquiry whether there was a mutual mistake.

6. Where plaintiff sought to reform notes on the ground that they were incorrectly put into writing by the mutual mistake of defendant, who drew them, and of plaintiff, who, being unable to read and write, was unable to correct the error, they not being read over to him, it cannot be objected to as an attempt to vary or contradict a written instrument by a cotemporaneous parol agreement.

7. Though one party's mistake will not entitle him to correct a written instrument when there is a mutual mistake or mistake on one side, and either fraud, undue influence, or like cause on the other, giving rise to plaintiff's mistake, the court will grant relief.

Appeal from Superior Court, Chowan County; Councill, Judge.

Action by Martin Jones against James C. and T. D. Warren. From a judgment in favor of plaintiff, defendant James C. Warren appeals. No error.

Pruden & Pruden and Shepherd & Shepherd, for appellant.

W. M. Bond, for appellee.

CLARK, C. J. This is an action to ascertain the balance due upon a mortgage executed by the plaintiff to the defendant to secure the balance of the purchase money upon the land which had been conveyed to the plaintiff by the defendant and an injunction pending the action. The complaint alleged that the purchase price was $8 per acre; that the deed recites a consideration of $1, but that the mortgage notes were written upon the basis of $10 per acre, allowing credit for amounts paid before the execution of the mortgage; that the plaintiff is an ignorant man, unable to read or write, and that the defendant wrote all the papers. The jury found that the plaintiff was entitled to the credits claimed, and that the agreed price was $8 per acre; and there was judgment in favor of the defendant for the balance due upon such findings, and a decree of foreclosure if such balance was not paid by a day named. The defendant appealed.

The plaintiff was allowed to state that, after he had contracted with the defendant and before the papers were drawn up, he (the plaintiff) stated to one Byrum that the agreement to buy was for the price of $8 per acre; and, further, Byrum testified that the plaintiff did make such statement to him at that time. The first and second exceptions were to the above evidence, but it was competent to corroborate the plaintiff who had testified that $8 per acre was the agreed price. Burnett v. R. Co., 120 N. C. 517, 26 S. E. 819, and cases there cited; Ratliff v. Ratliff, 131 N. C. 431, 42 S. E. 887.

The third exception—for refusing to nonsuit the plaintiff at the close of his evidence —was waived by the defendant introducing evidence. Ratliff v. Ratliff, 131 N. C. 428, 42 S. E. 887; McCall v. Railroad, 129 N. C. 298, 40 S. E. 67; Means v. Railroad, 126 N. C. 424, 35 S. E. 813.

The fifth exception is that the court refused to tell the jury that the evidence was not...