New York, N.H.&H.R. Co. v. Plimpton

• Decision Date: 07 April 1921
• Citation: 130 N.E. 498,238 Mass. 337
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: NEW YORK, N. H. & H. R. CO. v. PLIMPTON et al.

238 Mass. 337

130 N.E. 498

NEW YORK, N. H. & H. R. CO.

v.PLIMPTON et al.

Supreme Judicial Court of Massachusetts, Norfolk.

April 7, 1921.

Appeal from Superior Court, Norfolk County; William Cushing Wait, Judge.

Bill by the New York, New Haven & Hartford Railroad Company against Herbert M. Plimpton and others. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Arthur W. Blackman, of Boston, for appellant.

Elihu G. Loomis and Asa P. French, both of Boston, for appellees.

DE COURCY, J.

By deed dated September 25, 1901, Herbert M. Plimton, to whose rights the defendant Plimpton Press has succeeded, conveyed a parcel of land in Norwood to the New England Railroad Company, the predecessor in title of the plaintiff. The deed contained the following:

‘As part of the consideration for this conveyance said railroad company, for itself and its successors and assigns, agrees to maintain a connection from the line and tracks of said railroad to a certain track now built on a trestle adjacent to the manufacturing establishment on the adjoining land of said grantors, and to maintain said trestle and the track thereon so long as said connection does not interfere with the proper development of the railroad company land for purposes of said railroad and the business done in connection with said railroad upon said track upon said trestle is sufficient to properly remunerate the railroad company for and warrant the maintenance of said connection.’

In 1911 it became necessary to rebuild the trestle; and as this plaintiff refused to do the work, it was done by the defendants Plimpton, Bird and Kendall. They then brought an action to recover the cost, and obtained a finding against the railroad company for $1,532.72. That finding was confirmed in Plimpton et al. v. New York, New Haven & Hartford R. R., 221 Mass. 548, 109 N. E. 732, where the facts appear more at length.

The plaintiff seeks by this bill in equity to have said deed reformed, by striking out the clause ‘and to maintain said trestle and the track thereon’; claiming that this was inserted by an error of the scrivener or through a mutual mistake of the parties. The case was tried before a judge of the superior court. No evidence was offered in support of the allegation of a mistake by the scrivener. In addition to certain subsidiary findings the judge found that there was no mistake in regard to the terms of the deed, that ‘the plaintiff does not make out the facts essential to its case, without regard to laches or res judicata’; and he ordered a decree dismissing the bill. On this appeal the decree must stand unless it clearly appears from the printed record that the decision of the trial judge was erroneous.

It is settled that a deed will not be reformed on the ground of mistake except upon full, clear and decisive proof that the instrument failed to express the intent which both parties had in making it. Coolidge v. Loring, 235 Mass. 220, 126 N. E. 276, and cases cited. The plaintiff bases its claim largely on the fact that the agreement of 1897 did not contain the clause in question. But the force of that executory contract ceased when the deed was accepted as performance of it. As was said in Williams v. Hathaway, 19 Pick. 387, 388:

‘* * * By the rules of law, when a deed is executed in pursuance of a...