Jumper v. Queen Mab Lumber Co.

• Decision Date: 12 March 1921
• Docket Number: 10582.
• Parties: JUMPER v. QUEEN MAB LUMBER CO.
• Court: South Carolina Supreme Court

106 S.E. 473

115 S.C. 452

JUMPER v. QUEEN MAB LUMBER CO.

No. 10582.

Supreme Court of South Carolina

March 12, 1921

Appeal from Common Pleas Circuit Court of Georgetown County; T. J Mauldin, Judge.

Action by W. J. Jumper against the Queen Mab Lumber Company. From a decree for defendant, plaintiff appeals. Affirmed.

The decree of the circuit judge was as follows:

This case was instituted in the court of common pleas for Aiken county, but, on motion, Hon. H. F. Rice, by order dated August 19, 1919, charged the venue to Georgetown county, and the entire record therein was transferred to that county.

The complaint alleged that the defendant, on October 17, 1917 agreed to sell in fee, for $5,000, to the plaintiff, a tract of land in Aiken county, containing 498.8 acres; that the contract was broken by the defendant; and that the plaintiff was entitled to the sum of $4,960 the difference in the alleged value of the land and the contract price. The defendant answered, admitting the formal execution of the alleged contract, but alleging that the same was executed in error and mistake, both parties intending to contract only as to certain timber and timber rights on said land, this being the true agreement, and both parties well knowing that the defendant did not own the fee; that if the contract be reformed so as to express the true intention of the parties and so as to cover the timber and timber rights owned by the defendant on the said tract of land, that it was ready and willing to carry out the same on its part. There were other defenses, but the conclusion I have reached renders a consideration of them unnecessary.

A consent order was passed by me at the November, 1919, term of court for Georgetown county, whereby a jury trial was waived, the cause transferred to Calendar No. 2, and referred to Arthur R. Young, Esq., of Charleston, S. C., as special referee, to take testimony on all issues, legal and equitable, arising therein; and to report the testimony so taken to me as presiding judge, and that if said report should not be filed in time for a hearing at said term the cause should be marked "Heard" and argument should take place at such time and place as might be subsequently agreed on. This order further provided that by reason of the short period of time remaining under the timber deed within which to cut and remove the timber that the said timber be sold at such price as might be agreed on by counsel, or fixed as reasonable by the court, and the proceeds deposited at interest to await the final determination of the court and its further orders--said sale to be without prejudice to the rights of either party to the cause, the proceeds of sale standing in lieu and stead of the timber and timber rights aforesaid.

Subsequently, on petition of the defendant, I passed an order, dated April 17, 1920, authorizing the defendant to accept an offer of $5,000 cash, made by Farr-Barnes Lumber Company to it, and to convey the said timber and timber rights to the said Farr-Barnes Lumber Company and deposit the proceeds of sale at interest according to the provisions of said order, in the event that the plaintiff did not, within 10 days from the service of a copy of said order on his attorney, avail himself of certain options which I allowed him and which are fully set forth in said order.

The defendant subsequently reported that a copy of the said order was duly served on the attorney for the plaintiff, that the options therein contained were not exercised by the plaintiff, and that pursuant to the requirements of the said order it conveyed the said timber and timber rights to the said Farr-Barnes Lumber Company and deposited the purchase price of $5,000 in the savings department of the Bank of Summerville, at interest, to the credit of this case, and subject to, and to await the final determination of, the court and its further orders in this cause.

The report of the special referee not coming in before the adjournment of the court as aforesaid, the case was marked "Heard." The special referee took all testimony offered on behalf of both parties, reported the same to me, and the cause has been fully argued before me.

I have carefully considered the testimony and the authorities bearing on the questions involved. The testimony clearly and fully shows, and so as to leave no doubt in my mind, that the alleged contract involved in this case was executed in mutual mistake, neither party intending that it should cover the fee, and that their minds have never met on such a proposition; but, on the contrary, that the parties intended only to contract as to the timber and timber rights on the said tract of land. The alleged contract should, therefore, be rescinded and set aside and the parties left in the same status they were in before the execution of the same.

The defendant, however, offers to perform the contract, if it be reformed so as to cover the timber and timber rights only. While I am satisfied of my power to rescind the alleged contract for the reasons given, I am not so sure that the cases would support me in reforming the contract, and in requiring the plaintiff to perform the same as so reformed, nor if I had the power would I care to so exercise it in this case.

The $50 paid to the defendant by the plaintiff when the alleged contract was executed should be returned by the defendant to the plaintiff, but as it has been fully established that the plaintiff prosecuted this case well knowing that the contract he relied on was not enforceable, he should be charged with the costs.

It is therefore ordered, adjudged, and decreed that within 20 days from the date of this order, the defendant do pay to the plaintiff the sum of $50.

It is further ordered, adjudged, and decreed that the Bank of Summerville, upon presentation to it of a certified copy of this order, do pay over to the defendant, Queen Mab Lumber Company, the fund of $5,000, with any interest earned thereon, now held on deposit by it to the credit of this cause.

It is further ordered, adjudged, and decreed that the plaintiff do pay the costs and disbursements (i. e., costs paid) of this case.

T. J. Mauldin, Circuit Judge.

John F. Williams, of Aiken, for appellant.

Legáre Walker, of Summerville, for respondent.

COTHRAN J.

Action at law for $4,960 damages on account of alleged breach by defendant of a written contract for the sale of land, dated October 17, 1917. The defendant admits the execution of the contract, but alleges that it owned only the timber rights on the land; that prior to the formal execution of the contract, which was but the written evidence of their agreement, the plaintiff and the defendant had agreed upon a purchase and sale of the timber rights on the land at $5,000, the plaintiff being aware of the fact that the title to the land was in another; but that owing to the fact that at the same time another transaction between the parties involved a contract for the conveyance of the title to another tract, and the attorney who drew both sets of papers, not being fully advised by the parties, drew the contract in question in like form, the defendant alleges mutual mistake and asks for a reformation of the contract, and that when so reformed the plaintiff be required to comply.

The case was referred to a special referee simply to take the testimony and report same, and upon the testimony so reported, was tried before Judge Mauldin, a jury trial having been duly waived.

The circuit judge filed a decree which will be reported, finding that "the alleged contract involved in this case was executed in mutual mistake, neither party intending that it should cover the fee, and that their minds have never met on such a proposition; but, on the contrary, that the parties intended only to contract as to the timber and timber rights on the said tract of land," and ordered the contract to be rescinded and the parties restored to their status quo.

The plaintiff appeals and relies upon these propositions:

(1) That there can be no relief from a mutual mistake in the absence of misrepresentation or concealment of fact.

(2) That there is no testimony to sustain the finding of fact of mutual mistake, for two reasons: (a) The burden was upon the defendant to maintain such plea, and the overwhelming weight of the evidence is opposed to such finding; (b) there was no sufficient evidence to show misrepresentation or concealment upon the plaintiff's part.

(3) That rescission of a contract should not be decreed in the absence of misrepresentation or concealment, where it appears that it was entered into by competent parties, at arm's length, when they read or should have read the same.

1. The appellant's position that there can be no relief from a mutual mistake, unless there enter into the mistake an element of misrepresentation or concealment, cannot be sustained for this reason: A contract may be reformed or rescinded, as the justice of the case may require, upon the ground of mistake, under these circumstances: (1) Where the mistake is mutual and is in reference to the facts, or supposed facts, upon which the contract is based; (2) where the mistake is mutual and consists in the omission or insertion of some material element affecting the subject-matter or the terms and stipulations of the contract inconsistent with those of the parol agreement which necessarily preceded it; (3) where the mistake is not mutual, but unilateral, and has been induced by the fraud, deceit, misrepresentation, concealment, or imposition in any form of the party opposed in interest to the reformation or rescission, without negligence on the part of the party claiming the right; (4) where the mistake is not mutual, but unilateral, and is accompanied by...