Smith v. Jordan

• Decision Date: 01 January 1868
• Citation: 13 Minn. 246
• Parties: SUMNER J. SMITH v. PETER JORDAN and others.
• Court: Minnesota Supreme Court

13 Minn. 246

SUMNER J. SMITH

v. PETER JORDAN and others.

Supreme Court of Minnesota.

Appeal by defendants from an order of the district court, Washington county, overruling a demurrer to the complaint.

Cornman & Stickney and J. N. Castle, for appellants.

H. N. Setzer, for respondent.

WILSON, C. J.

This case comes before us on an appeal from an order of the district court of Washington county, overruling a demurrer to the complaint, which is in the following language:

"This plaintiff avers that on the ninth day of May, 1866, at the city of Stillwater, Minnesota, the plaintiff purchased of the defendants, and the said defendants then and there sold to this plaintiff, and then and there agreed to deliver to this plaintiff, in the boom of the St. Croix Boom Corporation, all the pine saw-logs cut and hauled during the winter of 1865 and 1866, by the said defendants; and this plaintiff then and there agreed to purchase the said pine saw-logs, and to pay for the same the sum, and at the rate of $10 per thousand feet, for all the pine saw-logs cut by the defendants, such payment to be made at the times and places, in a written agreement contained, as hereinafter set forth. And this plaintiff further avers that at the time and place above set forth, and in confirmation of the contract for the sale of the said pine logs hereinbefore mentioned, this plaintiff and the said defendants interchangeably made and executed the following agreement in writing, to-wit: `This agreement, made by and between Peter Jordan and Samuel Matthews, under the firm name of Jordan & Matthews, on the one part, and S. J. Smith on the second part, witnesseth, that the parties of the first part have sold, and do hereby sell to the party of the second part, all their logs cut by them in the winter of the year A. D. 1865 and 1866, the same being marked thus — [mark] called star, double anchor, star, and will deliver the same in the St. Croix Corporation boom as soon as circumstances connected with driving the same will permit, and will warrant and defend the party of the second part in the peaceable possession of the same. And the party of the second part agrees to pay to the parties of the first part $10 for each and every thousand feet for all logs coming into his possession, according to the surveyor general's scale at Stillwater, Minnesota, and will advance in the month of June, upon demand of the parties of the first part, $2,000 on this contract.'"

The ground of demurrer stated is that "it appears upon the face of the complaint that the same does not state facts sufficient to constitute a cause of action."

In his argument the defendants' counsel more minutely specifies his ground of objection, and urges that the complaint is bad, because: (1) A written instrument cannot be contradicted by parol; (2) the writing is in language and substance in accordance with the intention of the defendants; (3) the words of the writing were understood and assented to by both parties; (4) a court will not reform a contract and award damages for its breach in the same action; (5) the contract is void for want of a revenue stamp; (6) the complaint does not show that "circumstances connected with driving the logs" permitted a delivery before the commencement of this action; (7) plaintiff has not alleged a sufficient demand; and (8) he has not alleged an offer or tender of performance on his part.

We will examine these objections in the order above stated. As to the first, it seems now to be well settled where no statutory enactment intervenes, that it is competent for a court of equity to rectify a deed or written contract upon clear and satisfactory proof, by parol evidence, that it fails, either on account of fraud or mistake of fact, to express the agreement and intention of the parties. Judge Story says: "One of the most common classes of cases in which relief is sought in equity on account of a mistake of facts, is that of written agreements, either executed or executory. Sometimes by mistake the written agreement contains less than the parties intended; sometimes it contains more, and sometimes it simply varies from their intent by expressing something different in substance from the truth of that intent. In all such cases, if the mistake is clearly made out by proofs entirely satisfactory, equity will reform the contract so as to make it conformable to the precise intent of the parties." Story, Eq. Jur. § 152. See, also, Id. § 153, where the same author says: "It has indeed been said that where there is a written agreement the whole sense of the parties is presumed to be comprised therein; that it would be dangerous to make any addition to it in cases where there does not appear to be any fraud in leaving out anything; and that it is against the policy of the common law to allow parol evidence to add to or vary the terms of such agreement. As a general rule there is certainly much to recommend this doctrine. But however correct it may be as a general rule it is very certain that courts of equity will grant relief upon clear proof of a mistake, notwithstanding that mistake is to be made out by parol evidence." See, also, Henkle v. Royal Ex. Co. 1 Ves. Sr. 317; Gillespie v. Moon, 2 Johns. Ch. 585; Bradford v. Union Bank of Tenn. 13 How. (U. S.) 57.

Neither the facts...