Moore v. Parker

• Decision Date: 08 January 1915
• Docket Number: 12101.
• Citation: 145 P. 440,83 Wash. 399
• Parties: MOORE v. PARKER et al.
• Court: Washington Supreme Court

145 P. 440

83 Wash. 399

MOORE v. PARKER et al.

No. 12101.

Supreme Court of Washington

January 8, 1915

Department 2. Appeal from Superior Court, Yakima County; Thos. E. Grady Judge.

Action by Samuel G. Moore to foreclose a mortgage against Julia A Parker and husband. Decree for deficiency judgment against Ed. Parker only, and plaintiff and defendants appeal. Reversed and remanded, with instructions to enter a decree against both defendants.

Englehart & Rigg, of North Yakima, for plaintiff.

Parker Richards & Fontaine, of North Yakima, for defendants.

MOUNT, J.

This action was brought to foreclose a mortgage for $4,000 upon certain described lands in Yakima county. The notes and mortgage are the usual forms of notes and mortgage executed in such cases. The defendants, Julia A. Parker and Ed Parker, who were the makers of the notes and mortgage appeared in the action and interposed three affirmative defenses, the first of which was the one relied upon, and the only one necessary to be stated. It was to the effect that, prior to the execution of the notes and mortgage, it was agreed between the parties thereto that there should be no personal liability upon the notes; that by mistake the notes and mortgage were so drawn as to render the defendants personally liable thereon, when, in fact, there was an agreement that they should not be personally liable. They therefore prayed that the notes and mortgage be reformed so that there should be no personal liability over against the makers of the notes if the mortgaged property was not sufficient to extinguish the debt. This affirmative matter was denied by the plaintiff.

Upon the trial of the case the court found that the contract was as alleged by the affirmative defense mentioned, but that the defendant Ed. Parker was so negligent in executing the notes and mortgage that he could not now claim that there was a mutual mistake. The court also found that Julia A. Parker was not negligent, and concluded that the notes and mortgage should be reformed as to her, and that there should be no personal liability against her upon the notes. A decree was entered to the effect that a personal judgment should be entered against Ed. Parker for any deficiency after the sale of the mortgaged property. A deficiency judgment against Julia A. Parker was denied. The plaintiff has appealed from so much of the decree as refused a deficiency judgment against Julia A. Parker, and the defendants have appealed from that part of the decree which authorizes a personal judgment against Ed. Parker. This presents the only question made upon the briefs upon appeal. It is largely a question of fact.

The rule is settled in this court that, before an instrument in writing will be reformed, the evidence must be clear and convincing that the writing is not what the parties intended it to be, and that the mistake was mutual. Bruce v. Grays Harbor Drug Co., 68 Wash. 668, 123 P. 1075; Hapeman v. McNeal, 48 Wash. 527, 93 P. 1076; Dempsey v. Dempsey, 61 Wash. 632, 112 P. 755; Heffron v. Fogel, 40 Wash. 698, 82 P. 1003.

In Hapeman v. McNeal, supra, we quoted the rule from 2 Pomeroy, Equity Jurisprudence (3d Ed.) § 859, saying:

'* * * Courts of equity do not grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of evidence, but only upon a certainty of the error.'

We are satisfied from a careful examination of the record that the evidence fails to show, even by a preponderance of the evidence, that there was any mutual mistake between the parties when the notes and mortgage in this case were executed. It is conceded that there were four promissory notes. Three of them were for $500 each, and one for $2,500. These notes were executed upon printed forms. The notes themselves contain no interlineations or additions to the printed forms. These forms do not provide that there shall be no personal liability against the makers. It is conceded that Julia A. Parker executed these notes, and that her husband Ed. Parker, also executed them. The mortgage also is the usual form. It does not contain any reservation that the mortgaged property shall be the only security for the payment of the debt. It was shown upon the trial of the case without any dispute that Ed. Parker, one of the makers of these notes and mortgage, was a lawyer who had for 20 years practiced his profession. He was a man who had dealt largely in real estate transactions. He had executed many notes. He was a man of more than ordinary intelligence, and knew the forms of contracts, and especially of notes and mortgages. His wife, Julia A. Parker, was likewise a woman of more than average intelligence. She had means of her own. Both makers of the notes and mortgage could read and write the English language and understood its purport. They testified upon the trial of the case that at the time the agreement was made and these notes and mortgage were executed it was understood between the payee of the notes and the makers that there should be no personal liability, but that the...