Merchant v. Pielke
| Decision Date | 26 April 1900 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland County; Pollock, J.
Action by Moses Merchant against Michael Pielke. Judgment for plaintiff, and defendant appeals.
Affirmed.
A. E Sunderhauf and Merrill & Engerud, for appellant.
To justify a court in exercising its power to revise a contract fraud or mistake must be clearly proven. A mere preponderance of evidence will not suffice. What the parties have solemnly reduced to writing cannot be varied or overthrown by oral proof unless the clearest evidence of mistake or fraud is produced. Clute v. Frazier, 12 N.W. 327; Newton v. Holley, 6 Wis. 592. The same rule applies here as was announced in Jasper v. Hazen, 4 N.D. 1. The court cannot make a contract for the parties; it can only declare what the parties agreed upon and enforce the agreement. 2 Pom. Eq Jur. § 859; Page v. Higgens, 5 L. R. A. 152 & n. If the parties signed the written instrument knowing of omissions they cannot ask the court for revision. Ellison v Fox, 38 N.W. 358; 2 Pom. Eq. § 839; Rev. Codes, § 3852.
Smith Stimmel, for respondent.
The fact that defendant denies that there is a mistake, and testifies that the deed was drawn according to the intention of the parties will not prevent the court from granting relief. Stines v. Hays, 36 N.J.Eq. 369; Beal v. Martin, 67 N.W. 433; Geib v. Reynolds, 28 N.W. 923.
This is an action in equity for the reformation of a contract. The plaintiff was successful in the District Court, and defendant brings the entire case to this court for a retrial. The issues are exclusively issues of fact, and will be treated as briefly as may be consistent with an understanding of the case. Any extended discussion of the testimony would prove unprofitable.
The defendant is the owner of a tract of land in Richland county consisting of nearly 400 acres. Of this amount, about 300 acres, roughly speaking, are cultivated and meadow lands. The remainder is pasture and timber land. It is all in one body. In the summer of 1898 there were on this farm one dwelling house, a large frame barn, two frame granaries, known as the large and the small granary, respectively, a log stable, a hog barn, and chicken house. On July 9, 1898, the parties went to the office of one Tweto, in the Village of Abercrombie, for the purpose of having a contract drawn between them pursuant to certain agreements already made, whereby plaintiff was to occupy and use the farm for a period of five years, and until the end of the cropping season of 1903. A contract was drawn and signed, and in October following, plaintiff moved his family, with his stock and machinery, onto the farm. At that time defendant was building a new dwelling house on the farm, only a few feet from the old dwelling house. As the new house was not completed, both families occupied the old until in November, when defendant, with his family, moved into the new. In the spring and summer of 1899 differences arose between the parties as to the right of possession in certain buildings on the farm, and of the pasture and meadow land, and these differences became so accentuated that injunctions and counter injunctions, and arrests and counter arrests, became quite common. The whole controversy hinged upon the nature of the contract. If that was what is known as a "cropper's contract,"--a contract under which plaintiff's right of possession would extend only to such land and buildings as were specially granted,--then defendant was in the right. If, on the other hand, the relation of landlord and tenant existed,--if the contract was a lease, under which the lessee would be entitled to the possession of all the land and buildings not specially reserved,--then the plaintiff was right in his contention. In form, the contract was what is usually termed a "cropper's contract." It was on the same blank form that was before the court in Angell v. Egger, 6 N.D. 391, 71 N.W. 547. We there said that some of the provisions seemed to be inconsistent with anything but a lease. But there are other provisions by which the second party, for a consideration to be paid by the first party, agrees to crop the land for the year or years specified, and that consideration is a certain share of the grain raised. The plaintiff in his complaint sets forth the oral contract entered into between the parties on July 4, 1898, five days before the written contract was made. The contract as thus set forth was clearly a contract of lease, and it is averred that it was the purpose and intention of both parties to have the oral contract thus made reduced to writing, but that, by the mutual mistake of both parties at the time of the execution of the written contract, it does not truly or correctly state the agreement between the parties, and he asks to have the contract reformed to correspond with the intention of the parties. The answer denies generally the mistake as alleged by plaintiff, but asserts that the contract was incorrect in certain particulars that would make it more favorable to the defendant.
The trial court so far reformed the written contract as to make it a technical lease, with certain reservations; and in this we reach the same conclusion, on a full review of the evidence, that was reached by the trial court. We recognize and apply the rule...
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