Kitchens v. Usry

• Decision Date: 12 November 1904
• Citation: 121 Ga. 294,48 S.E. 945
• Parties: KITCHENS v. USRY.
• Court: Georgia Supreme Court

48 S.E. 945

121 Ga. 294

KITCHENS

v.USRY.

Supreme Court of Georgia.

Nov. 12, 1904.

PLEADING —AMENDMENT—CONTRACT —-REFORMATION—EVIDENCE.

1. The amendment did not set out a new cause of action, and the petition, as amended, set out a cause of action.

2. In a proceeding to reform a written instrument on the ground of mistake, parol evidence is admissible to show what was the real contract between the parties, and that by mistake of the scrivener and oversight of the parties the writing was not made to express the whole contract.

¶ 2. See Reformation of Instruments, vol. 42. Cent.

Dig. §§ 155, 156.

3. The evidence was sufficient to show that the contract agreed upon by the parties was different from that embodied in the instruments which were executed, and that a portion of the real contract was, by mistake of the scrivener and of the parties, omitted from the written instruments. The verdict in favor of the plaintiff was authorized by the evidence, no error of law was committed, and there was no abuse of discretion in refusing a new trial.

(Syllabus by the Court.)

Error from Superior Court, Glascock County; H. M. Holden, Judge.

Action by R. E. L. Usry against Lucy Kitchens. Judgment for plaintiff. Defendant brings error. Affirmed.

Rogers & Stephens and E. P. Davis, for plaintiff in error.

B. P. Walker, for defendant in error.

SIMMONS, C. J. Judgment affirmed. All the Justices concur.