Kelley v. Ward

• Decision Date: 30 June 1900
• Parties: KELLEY et al. v. WARD.
• Court: Texas Court of Appeals

58 S.W. 207

KELLEY et al. v. WARD.

Court of Civil Appeals of Texas.

June 30, 1900.

Appeal from district court, Clay county; A. H. Carrigan, Judge.

Suit by J. C. Ward against M. A. Kelley and others to set aside a written agreement and judgment thereon. Judgment for plaintiff, and defendants appeal. Affirmed.

J. A. Templeton and Allen & Allen, for appellants. W. W. Flood and A. A. Hughes, for appellee.

CONNER, C. J.

The assignments of error herein relate mainly, in their final analysis, to the alleged insufficiency of the verdict to sustain the judgment, and of the evidence to sustain the findings of the jury upon special issues, in a suit instituted by appellee to vacate a certain judgment and the agreement upon which it was rendered, that may be found in the case of Ward v. Wilson (Tex. Civ. App.) 43 S. W. 833, and (Tex. Sup.) 45 S. W. 8, and hence need not be here repeated. The feature of said agreement and judgment sought to be vacated was that which obligated appellee personally for the payment of the sum stated, the ground alleged being, in substance, that the written agreement was executed under a mistake of fact as to its terms and legal import, and contrary to the terms of the true agreement made. This was denied by appellants; the trial resulting in a judgment for appellee.

The court submitted 21 special issues, to which the jury answered, and the evidence covers 59 pages of the transcript, and we have concluded that a full discussion thereof cannot be made within reasonable limits. Less than that would render any discussion unsatisfactory. We therefore conclude, without effort to here analyze the verdict or evidence, that we are unable to say that the court erred in the particulars assigned, or that the evidence is insufficient to sustain the verdict and judgment. While there are some apparent inconsistencies in the verdict, yet, construed as a whole, in the light of its supporting evidence, we think it sufficient to establish, and we so find the facts to be, that immediately prior to the execution of the written agreement there was an oral agreement entered into between appellee and Mrs. M. A. Kelley which in no way bound appellee personally for the payment of any part of the amounts due Mrs. Kelley from the other parties in the suit then pending; that the written agreement was the result of the effort of the attorneys to reduce such oral agreement to writing, as they had been instructed to do by appellee; that by mistake in the use of terms, and in the legal effect of those used, the written instrument was made to embody the feature of said written contract personally binding appellee for the payment of the sums, as afterwards adjudged against him; that appellee's counsel executed the instrument, and appellee consented thereto, laboring under such mistake as to its terms and as to its legal effect, appellee being entirely ignorant of the fact that he thereby became bound personally. And while it appears appellee heard it read, yet in view of the express finding of the jury in answer to the seventh special issue requested by appellants, and of the confidence reposed in those drafting the instrument, and of the character of the instrument itself, and of other circumstances, we cannot say there is no evidence tending to support the verdict and judgment to the effect that appellee was without negligence in this particular. It was further shown that appellee had no notice of the amended petition upon which said judgment was predicated, and that he did not know of the judgment until after the expiration of the term at which it was rendered, and that he was without negligence in his failure to have such notice and knowledge. While we do not deem it necessary, in extenso, to enter the domain of the nice distinctions made between the mistakes of law and of fact, and of the combinations of both, authorizing equitable relief, yet should the verdict and evidence be construed, as is insisted, as showing merely mistake of the parties in the legal effect of the instrument, it does not follow that relief cannot be afforded. Mr. Pomeroy, in his work on Equity Jurisprudence (volume 2 [2d Ed.] § 843), states the general rule of law supported by the great weight of authority, viz. that equity will not give relief on the mere ground of a mistake in the legal effect of the whole or any part of a written agreement. But this general rule is the one applied in cases where it appears that the real agreement is as shown in the writing, but where mistake as to its legal import is made. Even in such cases this rule has its exceptions, for it is said in the next succeeding section: "It is equally well settled that there are particular instances in which equity will grant defensive or affirmative relief from mistakes of law, pure and simple." If appellee's testimony, however, is to be credited, as was evidently done by the jury and the trial court, the case before us is one in which the real agreement did not personally obligate appellee for any part of appellant's debt, but where, in the process of reducing it to writing, such terms were included. As to this class of cases the same author says, in section 845: "If, on the other hand, after making an agreement, in the process of reducing it to a written form the instrument, by means of mistake of law, fails to express the contract which the parties actually entered into, equity will interfere with the appropriate relief, either by way of defense to its enforcement, or by cancellation, or by reformation, to the same extent as if the failure of the writing to express the real contract was caused by a mistake of fact. In this instance there is no mistake as to the legal import of the contract actually made, but the mistake of law prevents the real contract from being embodied in the written instrument. In short, if a written instrument fails to express the intention which the parties had in making the contract which it purports to contain, equity will grant its relief, affirmative or defensive, although the failure may have resulted from a mistake as to the legal meaning and operation of the terms or language employed in the writing. Among the ordinary examples of such errors are those as to the legal effect of a description of the subject-matter, and as to the import of technical words and phrases; but the rule is not confined to these instances,"—in support of which many decisions are cited. We have examined all of them available to us, and, in our opinion, they support the text and the judgment in this case. A few instances will perhaps serve to illustrate.

The case of Stone v. Hale, 17 Ala. 557, was where "a father, having a daughter unprovided for, and whose husband was improvident, determines to invest some property in a trustee to her sole and separate use for life, as the means for her support, etc., remainder to her children. Instructions are given to an attorney to draw the deed, but, through his omission, the words, `to her sole and separate use,' or equivalent expressions, are left out, by which mistake of the attorney the property is vested in the improvident husband for life, if the deed be not reformed," etc. It was held that the parties resisting the reformation could not avail themselves of this accidental legal advantage. The case of Clayton v. Freet, 10 Ohio St. 545, was where it was intended that the title to certain property should be conveyed to...