Southard v. Curley

• Decision Date: 07 June 1892
• Citation: 134 N.Y. 148,31 N.E. 330
• Parties: SOUTHARD v. CURLEY et al.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 148

31 N.E. 330

SOUTHARD

v.CURLEY et al.

Court of Appeals of New York, Second Division.

June 7, 1892.

Appeal from supreme court, general term, second department.

Action by Charles H. Southard against John J. Curley and anothr. From a judgment of the general term affirming a judgment for defendants, plaintiff appeals. Affirmed.

FOLLETT, C. J., dissenting. 12 N. Y. Supp. 191 affirmed.

Horace Secor, Jr., for appellant.

Charles N. Morgan, for respondents.

PARKER, J.

This action was instituted for the purpose of recovering the damages which the plaintiff claims to have sustained by reason of a breach by the defendants of the following agreement: ‘September 10, 1889. I, C. H. Southard, of Baldwins, Queens county, N. Y., agreed to sell to John J. Curley and J. M. Brosnan, of Rockaway Beach, L. I., said county and state, all [here follows a description of the property in question,] for the sum of thirty-one thousand dollars, to be paid at 30 or 60 days from date of this agreement; and I hereby acknowledge the receipt of check of one hundred dollars from John J. Curley and J. M. Brosnan, both of Rockaway Beach, N. Y. C. H. SOUTHARD. Signed and delivered in presence of J. M. BROSNAN and JOHN CURLEY.’ The property described in the agreement was a portion of the Mammoth Hotel at Rockaway Beach. The answer averred the purchase of the building by the plaintiff of the owners of the land on which the building was located; the securing of an option by the defendants to purchase the premises from the owners within a given period; their desire to secure an option for the purpose of so much of the hotel building as remained standing; and that the agreement which they in fact made with the plaintiff was to pay him $100 for an option to purchase the building within 30 or 60 days for the sum of $31,000, but the defendant Brosnan, in the haste of drafting the memorandum of agreement, omitted to insert that the sale was optional with the defendants. The answer demanded, among other relief, that the writing be so reformed as to express the true meaning of the parties.

No exceptions were taken to the admission of testimony, but an exception was taken to the refusal of the court to direct a verdict in favor of the plaintiff, at the close of the case; and the appellant urges that an error is thus presented. We do not so regard it. The issue presented by the pleadings permitted the introduction of testimony tending to show that the writing relied on by the plaintiff did not state the agreement which the parties made. On the trial evidence tending to establish the allegations of the answer in such respect was without objection in troduced; and, without stopping to recite it, it is sufficient to say that it would support a decree so reforming the writing as to provide that the $100 was paid for the right to purchase the property described within the period provided, and for the sum named. The denial of plaintiff's motion to direct a verdict, therefore, was not error.

No exception was taken to the charge of the court, but the plaintiff requested the court to charge ‘that the burden of proof is on the defendants to satisfy the jury, beyond a reasonable doubt, that there was a mutual mistake in this case;’ and the exception taken to the refusal of the court to charge as requested is now assigned for error. It is a rule of the criminal law that the guilt of the accused must be fully proved; that neither a preponderance of evidence nor any weight of preponderant evidence is sufficient for the purpose, unless it generate full belief of the fact, to the exclusion of all reasonable doubt; a degree of conviction, it is said, which ought only to be produced when the facts proved coincide with and are legally sufficient to establish the truth of the hypothesis assumed, namely, the guilt of the party accused, and are inconsistent with any other hypothesis. But a distinction has always been recognized and maintained between criminal and civil cases in respect to the degree or quantity of evidence necessary to support a judgment; in the latter class of actions the law being satisfied with a finding in accordance with the preponderance of, or weight of preponderating, evidence. The difference in the form of oath administered to jurors in civil cases and criminal actions is in accordance with this fundamental distinction. But it is urged that in an action brought to reform a written contract on the ground that, owing to a mistake, it fails to express the agreement which the parties to it actually made, the courts have at last adopted the rule of criminal actions, that the evidence must be such as to establish the mistake beyond a reasonable doubt. That such was not always the rule is conceded, but it is claimed that the later adjudications have settled the rule in accordance with the appellant's contention. In 1 Story, Eq. Jur. § 157, the doctrine is stated as follows: ‘Relief will be granted in cases of written instruments only when there is a plain mistake, clearly made out by satisfactory proofs. It is true that this, in one sense, leaves the rule somewhat loose, as every court is still left free to say what is a plain mistake, and what are proper and satisfactory proofs. But this is an infirmity incident to the very administration of justice; for in many cases judges will differ as to the result and weight of evidence, and consequently they may make different decisions upon the same evidence. But the qualification is most material, since it cannot fail to operate as a weighty caution upon the minds of all judges, and if forbids relief whenever the evidence is loose, equivocal, or contradictory, or it is in its texture open to doubt or to opposing presumptions.’ The rule declared by Story was in accordance with the adjudications at the time of his writing, and in accordance, doubtless, with the general understanding of the profession at the present time. Judge Redfield, in his revision, has added to section 157, Story, Eq. Jur. (11th Ed.,) the following; ‘The proof must be such as will strike all minds alike as being unquestionable and free from reasonable doubt. The distinction here attempted to be defined, in regard to the measure of proof, is much the same which exists between civil and criminal cases.’ Mr. Pomeroy, in his work on Dquity Jurisdiction, (volume 2, § 859,) reaches the same conclusion. He says: ‘The authorities all require that the parol evidence of the mistake and of the alleged modification must be most clear and convincing,-in the language of some judges, the strongest possible,-or else the mistake must be admitted by the opposite party. The resulting proof must be established beyond a reasonable doubt.’ We have examined all of the authorities cited by Judge Redfield and Mr. Pomeroy in support of the rule which they have attempted to deduce from them, as well as those cited by the appellant. It would hardly be proper in this connection to attempt a review of them all, but we have selected from different jurisdictions a number of cases which are fairly represen tative, as to the expressions made use of by the courts, touching the degree or quantity of proof...