Sparrow v. Cimonetti

• Decision Date: 04 May 1948
• Citation: 58 A.2d 875,115 Vt. 292
• Parties: WARREN SPARROW ET AL. v. JOSEPH CIMONETTI ET AL
• Court: Vermont Supreme Court

58 A.2d 875

115 Vt. 292

WARREN SPARROW ET AL. v. JOSEPH CIMONETTI ET AL

Supreme Court of Vermont

May 4, 1948

February Term, 1948.

Mistake and Specific Performance.

1. A finding must stand if there is legitimate evidence fairly and reasonably tending to sustain it; the fact that the evidence is conflicting cannot avail the excepting party; and the weight of the evidence and the credibility of the witnesses are for the trier of the facts to determine.

2. If a witness makes conflicting statements, it is for the trier to determine which is to be accepted.

3. Briefing, when it consists only of a repetition of the grounds stated in taking exception, is inadequate and not for consideration.

4. Requests for findings which are immaterial to the issues are properly refused.

5. When a defendant has set up mistake as an affirmative defense, the burden of establishing it rests upon him.

6. The measure of persuasion to establish mistake is proof beyond a reasonable doubt; this does not mean that the evidence must be such as to strike all minds alike or that it must not be contradictory; but where there is clear, distinct and substantial evidence, the degree of certainty which it implants in the mind of the trier is for him alone, and on appeal his decision will be interfered with only if it may be said as a matter of law that he has erred in his estimate of the force of the evidence and the inferences to be drawn therefrom.

7. A statement in findings that the trier is unable to find by the requisite degree of proof is equivalent to an affirmative finding against the party claiming the fact.

8. The contrary not appearing, it will be assumed on review that the trier considered all pertinent facts and circumstances; and that he examined the evidence with impartial patience and adequate reflection.

9. The Court of Chancery will lend its aid in the rescission of a written agreement where one party thereto has entered into it under a mistake as to the facts upon which it was based or as to the terms and stipulations embraced therein, such mistake not having arisen through the fault of either party; but where the mistake has resulted solely from the negligence or inattention of the party seeking relief, the other being without fault, relief will be refused except under very strong and extraordinary circumstances showing imbecility or something that would make it a great wrong to enforce the agreement.

10. If a contract is untainted by fraud, bad faith or misrepresentation, aid of the Court of Chancery in the matter of rescission will not be granted merely upon a showing that it was entered into improvidently, or that it has resulted in hardship.

11. When a cause is tried by court a motion to dismiss is premature when made prior to the filing of findings of fact.

12. A petition for specific performance is addressed to the sound judicial discretion of the court of chancery, which is to be exercised in conformity with established principles and rules; and where the established principles and rules are shown to apply, specific performance will be decreed almost as a matter of course.

13. Since the granting of relief by way of specific performance lies in the court's discretion, the result can be revised only where an abuse thereof clearly and affirmatively appears; the recognized test of which is whether the court has exercised its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable.

BILL FOR SPECIFIC PERFORMANCE. The answer claimed mistake and asked for rescission. In Chancery, Bennington County, Adams Chancellor. Decree for the plaintiffs.

Decree affirmed.

Waldo C. Holden for the defendants.

Leonard W. Morrison for the plaintiffs.

Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

MOULTON

On October 31, 1946, the parties to this cause entered into a written agreement for the conveyance of certain land in the town of Stamford by the defendants to the plaintiffs. The defendants have refused to execute the required deed, and this proceeding in equity has been brought to obtain specific performance. The answer alleges that the agreement was entered into under a mistake and asks for affirmative relief by way of rescission. After hearing and filing findings of fact the chancellor entered a decree for the plaintiffs. The cause is before us on the defendants' exceptions to the findings and to the refusal of the chancellor to find as requested by them.

The agreement, which appears as a part of the complaint, is admitted by the answer and is contained in the findings of fact, recites that the respective parties own adjoining parcels of land; that there had arisen a dispute between them concerning the boundaries between their properties; that as a result of this dispute an action for a declaratory judgment, brought by the plaintiffs, is pending in the Bennington County Court; and that the agreement is made in view of the foregoing and the wish of the parties to settle the controversy without resort to litigation. It is therein provided that there shall be fifty acres of land in the Cimonetti parcel; that the boundaries thereof shall be determined by a survey, to be made by the office of Mr. M. J. Burrington, a civil engineer of Bennington, at the expense of the plaintiffs; that the survey shall start at the northwest corner of the parcel of land described in the deed by which the defendants obtained their title. The instrument then proceeds as follows: "(4) that the first bounds to be traced by the surveyor shall run from the said northwest corner along the fence as it is now established to the brook which leads to the Hubbard Brook; that the course of the west and south lines of the Cimonetti's shall follow the course of the Hubbard Brook to the point where it crosses the highway; thence in a general northerly direction along the west line of the highway to a point opposite and in line with the line between the lands of Tetreault and Sanford; that the line shall then turn in a general westerly direction and northerly direction to be plotted out by the surveyor so as to include a total of fifty acres within the four bounds. (5) The east and north lines of the Cimonetti parcel are to be set by the surveyor with a view to including fifty (50) acres therein. To accomplish this the surveyor is to run a line in an easterly direction from the starting point along the south line of the Baptist Church Lot and the extension thereof and shall set the perimeter of the property occupying the west and south lines as they are now determined to be with a view to setting out a parcel of land fifty (50) acres in size. (6) The parties may meet with the surveyor and point out to him the land marks and bounds. (7) The surveyor shall prepare a map of the Cimonetti lot and the boundaries as determined by him shall be binding on both parties and each party shall quitclaim to the other within ten days following the completion of the map the lands which the surveyor has assigned to the other. (8) That the parties shall also exchange general releases and the action now pending in the County Court at Bennington shall be discontinued without costs."

It appears from the findings of fact that the defendants' land lies west and south of the land of the plaintiffs and that before the defendants purchased their parcel there had been a dispute between the plaintiffs and the defendants' grantors with regard to the boundary between their respective properties. When the defendants purchased their land the defendant Joseph Cimonetti was shown by Stebbins, one of his grantors, what the latter claimed to be its boundaries and was informed that it contained fifty acres more or less, which he understood to mean not less than fifty acres nor more than sixty acres. While the action for a declaratory judgment was pending, in October, 1946, the plaintiff Warren Sparrow and the defendant Joseph Cimonetti, with their respective attorneys met upon the land in question. Stebbins and two other persons were also present. It was there agreed in substance that a survey should be made to establish the disputed boundary so that the defendants would have fifty acres of land in their parcel, which was what Cimonetti said he wanted. His attorney warned him that he might be disappointed at the outcome of the agreement. The plaintiffs' attorney drew a rough sketch of what would be the Cimonetti parcel which the parties examined and discussed. At that time the parties did not know where the boundary would be located in order to give the defendants fifty acres of land, or how much would be left in the plaintiffs' parcel after giving fifty acres to the defendants. After this conference the written agreement was prepared, signed by the plaintiffs and two copies were sent to the defendants by their attorney. The defendants are not well educated and cannot read English too well. They kept the agreement for two or three weeks. Joseph Cimonetti looked it over and consulted Stebbins who said, in substance, that he saw nothing wrong with it. Thereupon Joseph told Ida, his wife, that Stebbins said that it would be all right to sign it, and both did so and returned the instrument, upon which the action for a declaratory judgment was discontinued.

Joseph Leonesio, a surveyor employed by Burrington, met Warren Sparrow and Joseph Cimonetti on the land, and started his survey at the northwest corner of the Cimonetti parcel which was marked by a large stone and proceeded southwards from that point along the established fence to the brook leading to the Hubbard Brook and along the course of that brook and of the Hubbard Brook to the point where the latter stream crosses the highway, and then in a northerly direction...