Langer v. Stegerwald Lumber Co.
| Decision Date | 06 January 1953 |
| Citation | 56 N.W.2d 512,36 A.L.R.2d 679,262 Wis. 383 |
| Parties | , 36 A.L.R.2d 679 LANGER, v. STEGERWALD LUMBER CO. |
| Court | Wisconsin Supreme Court |
Schubring, Ryan, Petersen & Sutherland, Madison, for appellant.
D. V. W. Beckwith, Madison, for respondent.
On Motion for Rehearing.
Counsel for defendant in support of their motion for rehearing complain that in our original opinion we treated the cause of action for reformation purely as a question of fact, when it was the position of defendant that plaintiff did not prove a mutual mistake of fact as a matter of law.
This court in Chicago, St. P., M. & O. Ry. Co. v. Bystrom, 1917, 165 Wis. 125, 133, 161 N.W. 358, 361, laid down the rule with respect to when it is proper for a court to reform a contract for mistake as follows:
'In order to reform a contract on the ground of mistake, the general rule is that the mistake must be mutual, or mistake on one side and fraud on the other.'
The facts of the instant case, with respect to the mistake which occurred in the lease description, clearly established a case for reformation within this rule.
Defendant's counsel cite a number of cases which hold that a party is not entitled to reformation if he failed to use due diligence in discovering facts which by the exercise of ordinary care he would have discovered, or he fails to make observations of things which are readily observable. We did not review and distinguish these cases because we considered that they had no application to the instant case because there was nothing to put the plaintiff on notice that there was an error in the description.
The case of Bostwick v. Mutual Life Ins. Co., 1903, 116 Wis. 392, 89 N.W. 538, 92 N.W. 246, 67 L.R.A. 705, and similar cases are cited by counsel, which cases hold that, if one makes a written contract with another, he takes upon himself the duty of acting intelligently and exercising ordinary care to inform himself of its provisions before he becomes bound thereby and, if he fails so to do, his negligence bars him from securing reformation. However, in the within case plaintiff knew that the lease he signed did contain a description of the premises, and his reading of such description woud not have apprised him that it was erroneous.
Motion for rehearing denied with costs.
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