Stack v. Commercial Towel & Uniform Service

• Decision Date: 21 April 1950
• Docket Number: No. 17951,17951
• Citation: 120 Ind.App. 483,91 N.E.2d 790
• Court: Indiana Appellate Court
• Parties: STACK v. COMMERCIAL TOWEL & UNIFORM SERVICE, Inc.

Page 790

91 N.E.2d 790

120 Ind.App. 483

STACK v. COMMERCIAL TOWEL & UNIFORM SERVICE, Inc.

No. 17951.

Appellate Court of Indiana, in Banc.

April 21, 1950.

Barney H. Fears, Indianapolis, Gilbert W. Butler, Martinsville, Maurice C. Fulford, Martinsville, for appellant.

Joseph & Dann, Indianapolis, Homer Elliott, Martinsville, for appellee.

MARTIN, Presiding Judge.

This action was instituted by appellee for reformation of deed to include an easement, and correct description, to enjoin appellant from entering upon said easement, and for damages. The trial resulting in a decision that appellee had an easement as described in the complaint 12' in width along the West side of the improvement from Udell street North 208' to continue so long as appellant shall continue to own the property on which said easement is located and situate, and appellant be enjoined from any use of the same, and appointed a commissioner to execute and deliver to appellee a reformed deed, and that appellee recover damages in the sum of $6,351.

The only errors assigned and not expressly waived are those specifications of the appellant's motion for a new trial which assert that the decision of the court is not sustained by sufficient evidence, and that it is contrary to law, and that the damages assessed by the court are excessive.

Counsel for the appellant contends there is a total absence of proof upon the alleged mistake in the deed and that it was not shown by the evidence that the mistake was a mutual mistake.

Clauses No. 7, 8, and 9 of appellee's complaint read as follows:

'Clause 7.

'That relying upon the survey of the said A. F. Haufler the defendant, in consummation of said agreement for the purchase and sale of the real estate described in said Exhibit A, executed and delivered to the plaintiff his warranty deed in which the real estate conveyed was described as follows:

'Lots 19, 20, 21 and 22 and 10 feet by parallel lines off of the entire West side of Lots 18 and 23, all in Block 14, in William Braden's et al. North Indianapolis Addition to the City of Indianapolis, as per plat thereof recorded in Plat Book 5, page 23, in the office of the Recorder of Marion County, Indiana; also all portions of vacated alleys adjacent to or adjoining any of said lots or portions thereof, and ten (10) feet by parallel lines off of the East side of vacated Elmira Street adjacent to or adjoining said Lots 20 and 21 above described.

'Clause 8.

'That it was the intent and purpose of the parties to said agreement of purchase and sale to convey and warrant to the plaintiff all of the real estate upon which the buildings and improvements described in said agreement of purchase and sale were in fact located and situate, and convey to plaintiff an easement as in said agreement made and provided for.

'Clause 9.

'That the west line of the building so purchased as aforesaid is in truth and in fact located on a line in vacated Elmira Street which is 10 feet and 8 inches west of the west line of Lots 20 and 21 hereinabove described; that it was the intent and purpose of the defendant to convey to plaintiff by the deed aforesaid all of the real estate upon which said building was located; that by reason of said mutual mistake the defendant delivered said deed and plaintiff received and accepted the same then believing and supposing that said deed correctly described all of the real estate upon which said buildings and improvements were in fact located and as was intended by said parties; plaintiff further avers that on or about the 4th or 5th day of September, 1946 it discovered said mistake and that it therupon on said day and before the beginning of this action demanded of defendant that he correct said mistake.'

Clause 3 of appellant's answer reads as follows: 'That defendant admits that part of Clause 3 in which plaintiff alleges that on the 20th day of February 1946, there existed a certain partnership consisting of Manuel I. Leve and Diana B. Leve doing business under the name and style of Commercial Towel & Uniform Service and that said contract was entered into as alleged under the terms of plaintiff's 'Exhibit A'.'

Exhibit A reads in part as follows: 'I hereby agree to purchase from the owner through you as his broker the property known as 1275 W. 29th Street, being a tract of ground 80' wide X approx. 260' deep, together with buildings thereon, the buildings being as follows: A showroom space approx. 80 X 75 at 1275 W. 29th St. and rear new building approx. 60 X 187' running through to Udell St., plus an easement of 12' along the west side of this tract, located in the City of Indianapolis, Marion County, Indiana * * *.'

Counter Proposal in part reads as follows of Exhibit A: '2. I will install concrete floor after buyer has laid pipe needed in his business (b) no toilet to be put in rear-sewers now in to property line, one toilet now in front building. (c) install 12 X 12 overhead door and 5 other doors in new building. (d) upstairs office to be closed in 8 steel sash--buyer to put in his own upstairs, office not to be finished. (e) will grant 12' easement from Udell Street to side double door as long as I own property price to be $48,000.00 net, buyer to pay real estate Commission. This counter offer to be accepted by 5 P.M. February 20, 1946.

'(Signed) John E. Stack.

'February 20, 1946

'1:30 P.M.

'I hereby accept proposition No. 2 above at a price of $48,000.00 net.

'(Signed) Commercial Towel & Uniform Service

'By: Manuel I. Leve.'

To Clauses 7 and 8 appellant filed answers admitting the allegations alleged. Clause 9 of appellee's complaint sets out the correct description of the West line of the real estate upon which the buildings and improvements described in the agreement (Exhibit 'A' to complaint)--were in truth and in fact located.

The pleadings thus disclose a situation where equity has always granted the type of relief ordered and decreed by the judgment appealed from. Equity will always reform a written instrument which admittedly does not express the confessed intentions and purposes of the parties.

No proof by way of testimony was needed in support of the allegations of Clauses 7 and 8 of appellee's complaint since appellant admitted these allegations by his answer. Appellant has thus admitted, that it was the intent and purpose of the parties to convey and warrant to appellee all the real estate upon which the buildings and improvements described in Exhibit A which was made a part of the complaint were in fact located and situate, and conveyed to appellee an easement as in said agreement made and provided for.

Admissions made in a pleading are denominated solemn admissions, or admissions in judico, and are not required to be supported by evidence. Such admissions are taken as true against the party making them without further controversy.

In fact, admissions in the pleadings can not be either proved or disproved on the trial, but must be accepted for whatever they amount to in legal effect, without reference to any other evidence that may be adduced. New Albany & Vincennes Plank Road Co. v. Stallcup, 1878, 62 Ind. 345; Bearcreek Tp. of Jay County v. DeHoff, 1943, 113 Ind.App.[120 Ind.App. 491] 530, 49 N.E.2d 391, 394; Lesh v. Johnston Furniture Co., 1938, 214 Ind. 176, 13 N.E.2d 708, 710, 14 N.E.2d 537; Continental Optical Co. v. Reed, Ind.App.1949, 86 N.E.2d 306, 88 N.E.2d 55.

The evidence shows that after Exhibit A was entered into it was understood between the parties that a survey was to be made of the property in question before the deed would be written and that the contract of purchase Exhibit A was assigned to appellee May 2, 1946.

The evidence further shows that the first survey was made in March 1946 which was inaccurate as to absolute correctness of West line with reference to buildings and that the easement was also omitted from the deed which was executed on May 10, 1946.

The evidence further shows that there was a further survey made about September 1946 when it was discovered that the first survey was inaccurate.

The evidence further shows that there was a stipulation by the parties to the effect that the appellant owned the property upon which the easement is located and situate.

The admissions in the pleadings, together with other evidence clearly shows that there was a mutual mistake of fact, that it was the intent and purpose of the parties to said agreement of purchase and sale to convey and warrant to the plaintiff all the real estate upon which the buildings and improvements described in said agreement of purchase and sale were in fact located and situate, and conveyed to plaintiff an easement as in said agreement made and provided for, referring to Exhibit 'A' in Clause 7.

Equity will grant relief by way of reformation where a deed fails to carry out the admitted and manifest intent and purpose of all the parties to the contract, pursuant to which such deed was executed and delivered, so that as to the terms of a deed executed by them for the purpose of embodying the proposed contract varies materially from that intention, either party is entitled to reformation so as to make the deed express the intention of the parties.

It is settled law that when it appears that by the mutual mistake of all the parties to an instrument, as to a matter of fact, the instrument does not express their agreement, a court of equity will reform the instrument by correcting such mistake. Citizens' National Bank of Attica v. Judy, 1896, 146 Ind. 322, 329, 339-346, 43 N.E. 259; Parish v. Camplin, 1894, 139 Ind. 1, 37 N.E. 607; Allen v. Bollenbacher, 1911, 49 Ind.App. 589, 97 N.E. 817; Hammond Hotel & Improvement Co. v. Perrin, 1933 ...