Simpson v. Hutchings

• Decision Date: 09 October 1952
• Docket Number: No. 32053,32053
• Parties: SIMPSON, v. HUTCHINGS et al.
• Court: Washington Supreme Court

Page 287

41 Wn.2d 287

248 P.2d 572

SIMPSON, v. HUTCHINGS et al.

No. 32053.

Supreme Court of Washington, Department 2.

Oct. 9, 1952.

Rehearing Denied Dec. 4, 1952.

Cooper & Cooper, Everett, for appellant.

Thomas G. McCrea, Everett, Bassett & Geisness, Seattle, for intervenor.

FINLEY, Justice.

This section was commenced by appellant Simpson to recover from respondent Hutchings $22,287 alleged to be due pursuant to a contract whereby respondent Hutchings was purchasing from appellant Simpson one half of the capital stock of the J. R. Simpson Motor Company, Inc. Respondent Hutchings admitted the contract but alleged that appellant Simpson had subsequently orally agreed with him to sell the remaining one half of the capital stock of the aforementioned company to the Simpson-Hutchings Motor Company, the latter transaction to include the assignment, transfer or cancellation of the debt arising out of the first contract.

Appellant Simpson replied that subsequent to the execution of the first contract he had entered into a second written contract with the Simpson-Hutchings Motor Company for the sale of the remaining one half of the stock, and that this contract did not include the assignment, transfer or cancellation of the $22,287 indebtedness.

Respondent Hutchings further alleged that the assignment of the debt was omitted from the written contract through mutual mistake, and he asked that the contract be reformed to express the intent of the parties.

The case was tried to the court sitting without a jury. Findings of Fact were entered, from which the court concluded that:

'The defendants and intervenor are entitled to have the agreement dated August 12, 1949, reformed so as to effectuate the intentions of the parties to said instrument, namely, that paragraph numbered '1' of said agreement should be reformed so as to read as follows:

"1. The seller agrees to sell, transfer and assign, and purchaser agrees to purchase the following described personal property, to-wit:

"(a) 448 shares of stock of Simpson-Hutchings Motor Co., a corporation, said stock being owned by seller; and

"(b) all of seller's right, title and interest in and to that certain contract dated June 1, 1943, whereby the seller previously sold to Gordon H. Hutchings 225 shares of stock of the Simpson Motor Company, Inc."

The decree reformed the contract accordingly, and dismissed the action. This appeal followed.

The errors assigned by appellant are the following:

'1. In holding that a unilateral mistake in reducing a contract to writing is sufficient grounds for reformation of contract in absence of allegation of fraud or inequitable conduct.

'2. In holding communications to one's attorney, who is or subsequently acts as the attorney for another party, made in the absence of the other party, were not privileged communications in an action between the two.

'3. In admitting Respondent's Exhibits 5 and 10, self-serving written declarations.'

(1) The first claim of error is that the court granted reformation on the sole ground of unilateral mistake in reducing the contract to writing.

From the assignment itself it is somewhat difficult to determine whether appellant is asserting error in (a) the conclusion of the court based on the alleged findings of unilateral mistake, or (b) upon the alleged finding of unilateral mistake itself. In either case there is no merit in the assignment because the court neither held nor found that there was a unilateral mistake. On the contrary, it expressly found that there had been a mutual mistake. No error is assigned to this finding, nor to the conclusions based upon it.

(2) Under the second assignment of error, appellant claims that certain communications between him and the attorney who drew up the August 12, 1949, agreement were privileged as communications between...