Parker v. Fisher

• Court: Georgia Supreme Court
• Writing for the Court: WYATT
• Citation: Parker v. Fisher, 207 Ga. 3, 59 S.E.2d 715 (Ga. 1950)
• Decision Date: 09 May 1950
• Docket Number: Nos. 17063,17064,s. 17063
• Parties: PARKER et al. v. FISHER et al. FISHER v. PARKER et al.

Page 715

59 S.E.2d 715

207 Ga. 3

PARKER et al. v. FISHER et al.

FISHER v. PARKER et al.

Nos. 17063, 17064.

Supreme Court of Georgia.

May 9, 1950.

Rehearing Denied June 16, 1950.

Syllabus by the Court.

Under the facts in the instant case, the ruling of the court below sustaining a demurrer to the petition, seeking to reform a lease because of an alleged mutual mistake, on the ground that plaintiffs were barred by laches, was not error.

Mrs. W. F. Parker, Mrs. W. L. Garrett, E. M. Hagan, and Mrs. S. S. Copeland, sued out a dispossessory warrant against M. L. Fisher Jr., seeking to dispossess him of described realty, as a tenant holding over. Fisher filed a counter-affidavit, in which he denied that he was holding over beyond the term of his lease. Thereafter, the plaintiffs in the court below filed an equitable bill in aid of the dispossessory-warrant proceeding, seeking to reform the lease contract under which Fisher held the property, because of an alleged mutual mistake.

The allegations, in substance, are: that J. L. Smith, an attorney, prepared the lease covering the property in question 'as attorney for all parties;' that the lease was executed by the plaintiffs in error, as lessors, to D. K. Brumback and M. P. Cain, as lessees; that the lease as originally prepared by J. L. Smith provided for a five-year lease on the property with the right of renewal of said lease for a period of five additional years 'at and for the same price;' that the parties, after reading the lease as originally drawn, advised Smith that this was not the agreement, but that the right of renewal was to be 'on such terms, conditions, and price as might be agreed upon at expiration of said lease;' that Smith caused the words, 'at and for the same price,' to be erased, and advised the parties that this change would carry out the true intention of the parties; that all parties to the lease relied upon this statement, and that a mutual mistake resulted; that the original lessee later transferred the lease to Guy A. Saxon, and advised Saxon of this understanding between the original parties at the time the lease was executed; that before M. L. Fisher Jr., acquired the lease by transfer, he was advised by an agent of the plaintiffs in error as to this understanding between the original parties to the lease contract. The prayer is that the lease contract be reformed so as to provide the right to renew the lease contract for an additional five years, conditioned upon the language sought to be added to the terms of the lease, to wit: 'on such terms, conditions, and price as might be agreed upon at expiration of said lease.'

The defendant in the court below demurred to the bill in equity in aid of the dispossessory-warrant proceeding, which sought to reform the lease contract on account of mutual mistake, insisting, among other things, that the plaintiffs in error are barred by laches. The trial court sustained the portion of the demurrer raising the question of laches, and overruled the remaining grounds of the demurrer. Exceptions to this ruling were duly preserved by exceptions pendente lite. The case proceeded to trial, resulting in a verdict being directed in favor of the counter affidavit. The motion for new trial, as amended, was overruled. The direct bill of exceptions assigns error upon the judgment overruling the motion for new trial, as amended, and upon the exceptions pendente lite as to the ruling on demurrer. The cross-bill assigns error upon the judgment overruling the remaining grounds of the demurrer.

Boykin & Boykin, Carrollton, for plaintiffs in error.

O. W. Roberts, Jr., Robt. D. Tisinger, Carrollton, for defendants in error.

WYATT, Justice.

'An honest mistake of the law as to the effect of an instrument on the part of both contracting parties, when such mistake operates as a gross injustice to one, and gives an unconscionable advantage to the other, may be relieved in equity.' Code, § 37-204. 'A mistake of law by the draftsman or other agent, by which the contract, as executed, does not fulfill or violates the manifest intention of the parties to the agreement, may be relieved in equity.' § 37-205. 'The negligence of the complaining party, preventing relief in equity, is that want of reasonable prudence, the absence of which would be a violation of legal duty. Relief may be granted even in cases of negligence by the complainant, if it appears that the other party has not been prejudiced thereby.' § 37-212. 'A court of equity will reform a contract of sale when, from mutual mistake or mistake common to both parties, an instrument does not express the true agreement of the parties.' W. P. Brown &c. Lumber Co. v. Echols, 200 Ga. 284, 286. 'In the case at bar the defendant will not be prejudiced by the reformation of this instrument, so as to make it speak the true contract between him and the plaintiff. If he gets what he bought, then he cannot be hurt by reforming the instrument, so as to keep him from getting what he did not buy.' Hill v. Agnew, 199 Ga. 644, 646, 34 S.E.2d 702, 704.

It is contended by the plaintiff in error that--under the principles of law above stated, as well as a long line of decisions of this court to...