M. Sigbert Awes Company, a Corp. v. Haslam

• Decision Date: 27 February 1917
• Citation: M. Sigbert Awes Company, a Corp. v. Haslam, 163 N.W. 265, 37 N.D. 122 (N.D. 1917)
• Court: North Dakota Supreme Court

163 N.W. 265

37 N.D. 122

M. SIGBERT AWES COMPANY, a Corporation, v. T. A. HASLAM

Supreme Court of North Dakota

February 27, 1917

Rehearing denied June 2, 1917.

Action for the specific performance of a contract.

Appeal from the District Court of Ramsey County, Honorable C. W Buttz, Judge.

Judgment for the defendant. Plaintiff appeals.

Affirmed.

Flynn & Traynor, for appellant.

The adding of the name of a witness to a contract is not a material alteration thereof. 2 C. J. 1207; Canfield v Orange, 13 N.D. 622, 102 N.W. 313.

One who negligently signs a contract without reading it, when he can read and has the opportunity to read it, but relies on statements of the other party, is not entitled to have it reformed, or set aside for fraud, where he had no right to rely upon the statements of the other party. Kimmell v Skelly, 130 Cal. 555, 62 P. 1067; Funded Debt v. Younger, 29 Cal. 172; Hawkins v. Hawkins, 50 Cal. 558.

The unsupported evidence of the party seeking reformation alone is wholly insufficient where such evidence is expressly contradicted by the other party. 34 Cyc. 984; Fritz v. Fritz, 94 Minn. 264, 102 N.W. 705; Kinyon v. Cunningham, 146 Mich. 430, 109 N.W. 675; Wilcox v. Swecker, 129 Iowa 151, 105 N.W. 392; Bushert v. A. W. Stevenson Co. Iowa , 113 N.W. 916; Chapman v. Dunwell, 115 Iowa 533, 88 N.W. 1067; Miles v. Shreve, 179 Mich. 671, 146 N.W. 374; Messer v. Baldwin, 262 Ill. 48, 104 N.E. 195; Lines v. Willey, 253 Ill. 440, 97 N.E. 843; Stewart v. McArthur, 77 Iowa 162, 41 N.W. 604; Des Moines v. County Agri. Soc. v. Tubbessing, 87 Iowa 138, 54 N.W. 68; Hoyer v. King, 101 Iowa 363, 70 N.W. 695; Marshall v. Westrope, 98 Iowa 324, 67 N.W. 257; Roundy v. Kent, 75 Iowa 662, 37 N.W. 146; Metropolitan Loan Asso. v. Esche, 75 Cal. 513, 17 P. 675; Comp. Laws 1913, § 7207; 34 Cyc. 989.

The failure of a man who can read, to read his contract before he signs, especially where there is no confidential relation or trust between him and the other party, is such negligence as will defeat his right to reformation. 34 Cyc. 949; Weltner v. Thurmond, 17 Wyo. 268, 129 Am. St. Rep. 1113, 98 P. 590, 99 P. 1128; Grieve v. Grieve, 15 Wyo. 358, 9 L.R.A.(N.S.) 1211, 89 P. 569, 11 Ann. Cas. 1162; Banfield v. Banfield, 24 Ore. 571, 34 P. 659; Grant Marble Co. v. Abbot, 142 Wis. 279, 124 N.W. 264; Mitchell v. Holman, 30 Ore. 280, 47 P. 616; Sayre v. Moir, 68 Ore. 381, 137 P. 215; Carlson v. Druse, 79 Wash. 542, 140 P. 570.

The fact that the contract is signed by only one party does not prevent specific performance. Comp. Laws 1913, § 7195; Merritt v. Adams County, Land & Invest. Co. 29 N.D. 496, 151 N.W. 11; Beddow v. Flage, 22 N.D. 53, 132 N.W. 637; Kerr v. Moore, 6 Cal.App. 305, 92 P. 107.

Nor does it make any difference that there were crops and personal property included in the contract. 36 Cyc. 564; Fleishman v. Wood, 135 Cal. 256, 67 P. 276; Young v. Porter, 27 Wash. 551, 68 P. 362; Brown v. Smith, 109 F. 26; Comp. Laws 1913, §§ 7192, 7201; 36 Cyc. 605.

Middaugh & Hunt, for respondent.

Parol evidence is admissible to show or prove mistake of fact in the making of a contract. Newton v. Wooley, 105 F. 541; Federal Oil Co. v. Western Oil Co. 57 C. C. A. 428, 121 F. 674, 22 Mor. Min. Rep. 429; 36 Cyc. 605, 608.

Unilateral mistake of defendant not caused or contributed to by plaintiff has frequently been admitted as a defense, when to enforce the contract would be harsh and unreasonable. 36 Cyc. 606; Bear Track Min. Co. v. Clark, 6 Idaho, 196, 54 P. 1007; Godwin v. Springer, 233 Ill. 229, 84 N.E. 234; Jones v. Prewitt, 128 Ky. 496, 108 S.W. 867; Berry v. Frisbee, 120 Ky. 337, 86 S.W. 558; Aiple-Himmelmann Real Estate Co. v. Spelbrink, 211 Mo. 671, 111 S.W. 480, 14 Ann. Cas. 652; New York Brokerage Co. v. Wharton, 143 Iowa 61, 119 N.W. 969; Andrew v. Whitwer, 3 Neb. (Unof.) 55, 90 N.W. 924; Marks v. Gates, 14 L.R.A.(N.S.) 317, 83 C. C. A. 321, 154 F. 481, 12 Ann. Cas. 120; King v. Hamilton, 4 Pet. 311, 327, 7 L.Ed. 869, 874; Willard v. Tayloe, 8 Wall. 567, 19 L.Ed. 501; Pope Mfg. Co. v. Gormully, 144 U.S. 224, 236, 36 L.Ed. 414, 419, 12 S.Ct. 636.

There is a distinction between an action for specific performance and also between the facts which would warrant a court of equity to grant specific performance, and facts which would induce a court to grant to defendant in such action the remedy of reformation. Cathcart v. Robinson, 5 Pet. 264, 8 L.Ed. 120; Newton v. Woodley, 105 F. 541.

Equity will act in either case where the mistake is mutual, or where it is unilateral and there is fraud, or inequitable conduct, on the part of the other party. 34 Cyc. 907, 920, 921, and cases cited; McCormick Harvesting Mach. Co. v. Woulph, 11 S.D. 252, 76 N.W. 939; James v. Cutler, 54 Wis. 172, 10 N.W. 147; Welles v. Yates, 44 N.Y. 525; Winans v. Huyck, 71 Iowa 459, 32 N.W. 422; Goodenow v. Curtis, 18 Mich. 298; Higgins v. Parsons, 65 Cal. 280, 3 P. 881; Day v. Day, 84 N.C. 408; 2 Beach, Eq. Jur. 544; Dane v. Derber, 28 Wis. 216; Benesh v. Travelers' Ins. Co. 14 N.D. 39, 103 N.W. 405.

Equity looks beyond all forms and to the real substance of things. Pyne v. Knight, 130 Iowa 113, 106 N.W. 505; Lloyd v. Hulick, 69 N.J.Eq. 784, 115 Am. St. Rep. 624, 63 A. 616; Smelser v. Pugh, 29 Ind.App. 614, 64 N.E. 943; Walden v. Skinner, 101 U.S. 577, 25 L.Ed. 963; American Freehold Land & Mortg. Co. v. Pace, 23 Tex. Civ. App. 222, 56 S.W. 377; Labbe v. Corbett, 69 Tex. 503, 6 S.W. 811; Roberts v. Plaisted, 63 Me. 335; Matlock v. Todd, 19 Ind. 130.

BRUCE, Ch. J. GRACE, J., did not participate. ROBINSON, J. (specially concurring).

OPINION

Statement of facts by BRUCE, Ch. J.

This is an action for the specific performance of a contract for the sale of certain land on an alleged price of $ 10,000. The answer, among other things, alleges that on or about April 5th, 1915, the defendant listed for sale with the plaintiff as agent, the property described and at the time of said listing a written memorandum was made of the terms thereof, which memorandum was intended by both plaintiff and defendant to conform to the terms of said listing, and to contain all of the terms of the agreement of listing as made by plaintiff and defendant, but through mutual mistake on the part of both parties said written memorandum failed to embody all of the terms of said agreement between the parties in this,--that it was a part of said listing agreement, and expressly understood by plaintiff and defendant that, if a sale of said real estate was to be made by plaintiff, acting as agent for defendant, said sale must have been consummated on or before July 1, 1915, if the same was to include the crops sown and grown upon said premises, and if said sale was not consummated on or before said date it was mutually agreed that the price at which said property was listed was not to include said crops, but that the same would on that date, if no sale was consummated before that time, remain the property of the defendant, to be severed and appropriated by him for his own personal use and benefit . . .--and it was understood and agreed by both parties that the terms of said agreement and understanding with reference to said crops was incorporated in and made a part of such written memorandum; and it was understood by both parties and supposed that said memorandum did contain the true agreement made by the parties, including the provisions with reference to said crops, until shortly before the commencement of this action, when it was discovered that, through a mutual mistake and error in preparing the said memorandum, the provision above referred to was not included therein.

The answer also prays that said agreement "and memorandum made between plaintiff and defendant and above described be reformed by inserting therein the real agreement of the parties and the provisions and stipulations with reference to the crops and the date of the termination of said offer for sale, and that the plaintiff's complaint be dismissed, and that the defendant be allowed his costs."

The learned trial court found, among other things, "that prior to the execution and delivery of said instrument plaintiff's agent Dryden and the defendant talked over and agreed upon the terms of listing of said property, and also of other property, and at same time defendant decided to list and did list the property in question he listed three other several tracts of land with plaintiff for sale as follows:

"The northwest quarter and west half of the northeast quarter of section 36, and lots 1 and 2 in section 36, and lots 1 and 2 in section 35, in township 151, range 62, containing 286.82 acres, none of which tract was under cultivation, listed for net price of $ 20 per acre.

"The southeast quarter of section 23, township 151, range 62, containing 160 acres, all of which was under cultivation, listed for a net price of $ 22.50 per acre, or if sold before July 1, 1915, including the 1915 crop, for $ 25 per acre.

"The west half of section 18, township 151, range 61, containing 300 acres, of which 190 acres was under cultivation, listing for a net price of $ 22.50 per acre, or, if sold before July 1, 1915, including 1915 crop, for $ 25 per acre.

"That each of said foregoing tracts was listed for a period of seven months, and each contained a reservation in defendant of the right to effect a sale himself at any time, said reservation being in effect similar to the like provision contained in the instrument effecting the premises involved in this action, and above quoted, and each of the foregoing tracts of land were listed for sale by defendant with the plaintiff before the tract involved in this action was listed.

"That after the listing of the foregoing three tracts as described and on the same day and as part of...