Macomber v. Peckham

• Decision Date: 02 March 1889
• Citation: 16 R.I. 485,17 A. 910
• Parties: MACOMBER v. PECKHAM.
• Court: Rhode Island Supreme Court

17 A. 910

16 R.I. 485

MACOMBER

v. PECKHAM.

Supreme Court of Rhode Island.

March 2, 1889.

Bill in equity by William F. Macomber against Stephen F. Peckham to reform a written contract for sale of land, and to enforce it as reformed.

Edward D. Bassett, for complainant. James Tillinghast, for respondent:

DURFEE, C. J. The contract set forth in the hill is a contract in writing signed by the defendant, whereby the defendant agrees to sell to the complainant a tract of land in Coventry and West Greenwich, known as the "estate of the American Cranberry Company, as platted by George W. Lamphear in 1870," and containing about 864 acres of land, for the sum of $12,500, to be paid as stated therein, the agreement to hold good until May 1, 1888, and a quitclaim deed of the premises to be given at any time before that date. The bill alleges that, by a mutual mistake of the parties in drawing up the contract, a portion of the land agreed to be sold was not included in it. The prayer is that the contract may be reformed so as to include the omitted part, and that as reformed it may be specifically enforced. The answer denies that any mistake was committed as alleged. When the case came on for hearing the complainant offered to prove the mistake by oral testimony for the purposes of relief as aforesaid. The defendant objected, and the court suspended the hearing to enable counsel to prepare briefs and argue the question before proceeding further, which has been done.

It is well settled that where, by reason of fraud or mistake, a contract for the sale of land is not as reduced to writing the contract which was agreed upon, the fact may be shown by oral testimony in defense to a bill for the specific performance of the contract as written to defeat the bill. The case at bar is not such a case. Nor is it a case in which it is claimed that the contract is taken out of the operation of the statute of frauds by part performance on the part of the complainant. It presents the naked question whether oral testimony will be received in equity for the purpose of reforming a written contract for the sale of real estate on the ground of mutual mistake and of enforcing it specifically when reformed. There is a conflict of decision on this question. The docrine of the English chancery courts is that oral testimony is not admissible for the purpose of reforming an executory contract in writing, and then enforcing it, no matter whether the contract be within the statute or not.

In this country a more liberal doctrine prevails, and the cases are numerous which assert the jurisdiction, though the cases are very few in which the jurisdiction has ever been actually extended to executory contracts in writing within the statute of frauds, in the absence of anything in the way of estoppel or part performance to raise an equity against the operation of the statute. And in most of the few cases referred to no consideration was given to the statute as affecting the question of jurisdiction. There are cases, however, both English and American, in which the effect of the statute has been considered. In Rich v. Jackson, 6 Ves. 335, note, (decided A. D. 1794,) the bill prayed that a written contract for a lease might be reformed by introducing the words "free of all taxes," accidentally omitted, and that as reformed it might be specifically enforced; but Lord ROSSLYN refused, being unable to find any precedent for the action. In Woollam v. Hearn, 7 Ves. 211, 2 White & T. Lead. Cas. Eq. 484, Sir WILLIAM GRANT likewise refused to enforce specifically, but with a parol variation, a written contract for a lease. He said: "Thinking, as I do, that the statute has been already too much broken in upon by supposed equitable exceptions, I shall not go further in receiving and giving effect to parol evidence than I am forced by precedent. There is no case in which the court has gone the length now desired." See, also, Clinan v. Cooke, 1 Schoales & L. 22, (decided by Lord REDESDALE the same year.) In Davies v. Fitton, 2 Dru. & War. 225. Lord ST. LEONARD refused to reform a lease executed in pursuance of a prior written agreement, saying that the deed could not be reformed by that which would have been inadmissible if the agreement were resting in fieri, and the bill had sought a specific performance of it. And so in Attorney General v. Sit well, 1 Younge & C. 559, Baron ALDERSON expressed himself against the power; "because," he said, (page 583,) "I cannot help feeling that, in the case of an executory agreement, first to reform and then to decree an execution of it would be virtually to repeal the statute of frauds." The doctrine thus expressed has often been recognized as correct by the English chancery courts, and, though there may be some doubting dicta, we are not aware of any English decision to to the contrary. Higginson v. Clowes, 15 Ves. 516; Jordan v. Sawkins, 4 Brown's Ch. 477; Martin v. Pycroft, 2 De Gex M. & G. 785; Manser v. Back, 6 Hare, 443.

It is sometimes urged that, if parol evidence be admissible to defeat specific performance, it ought pari ratione to be admissible in support of performance with parol variation. The distinction is admirably explained by Lord REDESDALE in Clinan v. Cooke, supra: "It should be recollected," he says, "what are the words of the statute: 'No person shall be charged upon any contract or sale of lands, etc., unless the agreement, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.' No person shall be charged with the execution of an agreement who has not either by himself or his agent signed a written agreement; but the statute does not say that, if a written agreement is signed, the same exception shall shall not hold to it that did before the statute. Now, before the statute, if a bill had been brought for specific performance, and it had appeared that the agreement had been prepared contrary to the intent of the defendant, he might have said: 'That is not the agreement meant to have been signed.' Such a case is left as it was by the statute; it does not say that a written agreement shall bind, but that an unwritten agreement shall not bind." In Townshend v. Stangroom, 6 Ves. 328, the lessor filed a bill for the specific performance of a written agreement for a lease, with a parol variation, and the lessee also filed a cross-bill for specific performance of the written agreement simply. Lord ELDON dismissed both bills,—the first, because the parol evidence was not admissible on behalf of the lessor seeking specific performance; the second, because it was admissible when adduced by him in defense to show that the agreement as reduced to writing was not what the parties intended. When the parol variation is set up in defense, it has been held that the court may in its discretion decree performance subject to the variation as set up, if the plaintiff desires, the bill being amended for that purpose. Lindsay v. Lynch, 2 Schoales & L. 9; 2 Story. Eq. Jur. § 770a. The effect of the statute of frauds is but slightly dwelt upon in the English cases, because the English chancery courts refuse relief whether the written contracts are within the statute or not. In the American cases the bearing of the statute is more explicitly considered. In Elder v. Elder, 10 Me. 80, the case was precisely like the case at bar, and the court refused relief by first rectifying the contract by oral testimony, and then enforcing it; their opinion being that to do so would violate the statute. In Osborn v. Phelps, 19 Conn. 63, the contract, which was for a sale of land, was written in two parts,—one for the vendor and the other for the purchaser,— and by mistake they each signed the part intended for the other. On a bill to reform by oral testimony, and enforce, the court refused relief. The court was of opinion that under the statute of frauds it was incumbent on the complainant to show both that the contract sought to be enforced had been reduced to writing and had been signed, and that in the absence of such showing the statute was imperative against enforcement, at least without other facts to take the case out of its operation. In Climer v. Hovey, 15 Mich. 18, the allegation was that the parties made a mistake in reducing the contract to writing,...