Kadow v. Aluminum Specialty Co.
| Decision Date | 01 July 1948 |
| Citation | 253 Wis. 76,33 N.W.2d 236 |
| Parties | KADOW et al. v. ALUMINUM SPECIALTY CO. |
| Court | Wisconsin Supreme Court |
This is an action in equity for reformation of a deed commenced the 21st day of September, 1944, by John Kadow, Jr., and Octavia L. Kadow, his wife, plaintiffs and respondents, against Aluminum Specialty Company, a Wisconsin corporation, defendant and appellant. From a judgment in favor of plaintiffs, defendant appeals. The facts will be stated in the opinion.
Fischer & Smith, of Manitowoc (Frank A. Murphy, of Manitowoc, of counsel), for appellant.
John R. Cashman, of Manitowoc, for respondent.
The question presented for decision is whether the evidence is sufficient to sustain the finding of the trial court that there was a mutual mistake of fact as to what land plaintiffs were selling and defendant was buying.
Plaintiffs and defendant owned adjoining platted lands in the industrial area of the city of Manitowoc. Plaintiffs' property had been a wood-working plant and had been dismantled and idle for several years. There were buildings on it, including a heating plant, barracks, and warehouse on the east portion thereof. During the early part of 1941 plaintiffs sold and conveyed two lots to defendant, and in July, 1943, plaintiffs sold to defendant lots one, four and five in block one hundred forty-three, and lots two, three and six in block one hundred forty-four, in the city of Manitowoc, together with a right of way north of said premises. Proper conveyances were executed, delivered and recorded. Shortly thereafter a survey disclosed that plaintiffs' heating plant and barracks extended 2.82 feet onto lots two, three and six in block one hundred forty-four, and this action is for reformation of the deed excepting this land from the property conveyed.
Walter Spindler, president and active manager of defendant corporation, was familiar with the entire premises and had been for some time. He knew the exact location of the Kadow buildings. He thought the east line of the property he was buying was a continuation of the east line of the company's property line. The company had previously purchased lot seven from plaintiffs and constructed a building on it, the east line of the building being on a line with the west line of the Kadow buildings on lot five. At the time the transaction was discussed a plat was used for reference to the size and location of the lots. Neither party knew that the Kadow buildings extended onto the lots involved in the transaction and the Kadows at no time intended to sell any portion of the buildings on the lots retained by them. Neither party knew where the lot lines were. Spindler testified that at the time of the purchase he was interested in the property on the plat and wanted a straight line, whether it included the boiler room, or barracks, or not. Defendant now contends there was no mutual mistake, that plaintiffs...
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Jeske v. General Acc. Fire & Life Assur. Corp.
...clearly show that both had agreed upon facts which were different than those set forth in the instrument. Kadow v. Aluminum Specialty Co., 1942, 253 Wis. 76, 78, 33 N.W.2d 236. Where reformation is sought, a distinction is made between ordinary contracts and contracts of insurance, and less......
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...instrument and had agreed on facts that were different than those set forth on the instrument.” Id. (citing Kadow v. Aluminum Specialty Co., 253 Wis. 76, 78, 33 N.W.2d 236 (1948)). “A mistake is only mutual if it is reciprocal and common to both parties.” Id. at ¶ 20, 33 N.W.2d 236 (citing ......
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...to the termination clause. They had not even read it and did not know that it was in the lease. This court in Kadow v. Aluminum Specialty Co., 253 Wis. 76, 33 N.W.2d 236, 237, 'To justify reformation the evidence must be clear and convincing that both parties intended to make a different in......