The Chicago Title & Trust Co. v. Smyth

• Decision Date: 06 April 1895
• Citation: 62 N.W. 792,94 Iowa 401
• Parties: THE CHICAGO TITLE AND TRUST COMPANY, Receiver of CHARLES P. KELLOGG & COMPANY, Appellant, v. JAY J. SMYTH
• Court: Iowa Supreme Court

62 N.W. 792

94 Iowa 401

THE CHICAGO TITLE AND TRUST COMPANY, Receiver of CHARLES P. KELLOGG & COMPANY, Appellant, v. JAY J. SMYTH

Supreme Court of Iowa, Des Moines

April 6, 1895

Appeal from Lucas District Court.--HON. W. D. TISDALE, Judge.

Action to recover one hundred and forty-nine dollars and eleven cents, with interest from April 5, 1893, alleged to be due as a balance on a contract for the sale of a stock of merchandise. Defendant denies that he is indebted to plaintiff. The facts and the issues will sufficiently appear in the opinion. The parties proceeded to the trial of this case before a jury, and after plaintiff had introduced its evidence in chief the defendant was called as a witness in his own behalf, and was proceeding to state a verbal contract between him and the plaintiff. Plaintiff objected, as being in conflict with the written contract, which objection was sustained. Thereupon defendant amended his answer, alleging that the said written contract "did not embody the intention of the parties, and did not mean that the said contract should exclude the sales of the Creston store for the first day of April, 1893." He asked the court to reform said contract, "in order that the same may express the intention of the parties when the same was made." Thereupon the cause was transferred to, and tried as in, equity, without objection; and the court made certain findings of fact and of law, and entered decree reforming the contract as prayed, and entering judgment thereon dismissing the plaintiff's petition, and for costs. Plaintiff appeals.

Reversed.

Stuart & Bartholomew for appellant.

Will B Barger for appellee.

OPINION

Given, C. J.

I.

For convenience, we will refer to Charles P. Kellogg & Co. as the plaintiff. Plaintiff, doing business in Chicago, was the owner of a stock of goods in a store and on sale in Creston Iowa in charge of one E. R. Jones. Plaintiff, desiring to sell said stock, sent one T. C. Ketcham to see the defendant at Chariton, with the view of selling the goods to him. On the thirty-first day of March, 1893, they two went to Creston. Defendant examined the stock, and offered five thousand three hundred dollars for it, which offer was refused, and the negotiations ended. On April fifth, following, defendant went to plaintiff's store in Chicago, where negotiations were resumed, and an agreement arrived at. Thereupon, plaintiff, by its president, executed and delivered to the defendant a bill of sale reciting that "in consideration of five thousand dollars, to be paid according to contract," it sold and assigned to defendant all the stock of merchandise in its store at Creston, excepting certain articles enumerated. Following this, the writing says: "In addition thereto, said Jay J. Smyth is to have the receipts from all sales from and after April 1st, 1893, less the expense of operating the business from that date." Plaintiff at the same time delivered to defendant an unsealed letter to Mr. Jones, as follows: "We have just wired you as follows: Smyth has bought stock. Sales and expenses since Saturday first go with it. Make Mr. Smyth an exact statement of the sales from Saturday. Expense includes rent to April 15th, and all salaries from Saturday." This bill of sale and letter the defendant read at the time they were delivered to him. Defendant returned to Creston, and presented this bill of sale and letter of instructions to Mr. Jones, who thereupon turned over the stock of merchandise to him, and gave him a written statement of the sales and expense to that date, including April 1, 1893. The sales for the first day of April amounted to one hundred and fifty-five dollars and eighty-one cents, and the expenses to six dollars and seventy cents, leaving one hundred and forty-nine dollars and eleven cents as the net proceeds of the day.

II. This controversy is simply as to which party is entitled to the net proceeds of the sales made on April 1 1893. The plaintiff executed and delivered, and the defendant received, the bill of sale as the contract on that subject. It says that the defendant "is to have the receipts from all sales from and after April 1st, 1893," less expenses. This the defendant says, in his amendment to his answer, "did not embody the intention of the parties, and did not mean that the said contract should exclude the sales of the Creston store for the first day of April, 1893," and asks that the contract be reformed, "that the same may express the intention of the parties." He does not allege either fraud, accident, or mistake in writing the contract as it is, but simply that it does not express the intention of the parties. Accepting this as a sufficient allegation of mutual mistake, we inquire whether defendant is entitled to have the contract reformed so as to read "on," instead of "from and after," April 1, 1893. There is neither allegation; nor proof of fraud or accident; hence we inquire only as to mistake. Both parties knew that the words "from and after April 1st, 1893," were written in the contract. Defendant testifies: "I opened it up, and looked it over, and I thought it was all right. I looked over the agreement, and thought it was all right." Further on he says: "I looked it over, and they looked it over carefully. I didn't put much strength to it. I stuck it in my pocket, and I thought it was all right." Neither party then intended that any different words should be used. The contention is not that different words were intended to be used, but as to the construction to be placed upon those used. To reform a writing on the ground of mistake, it must appear that the mistake was mutual. Wachendorf v. Lancaster, 61 Iowa 509, 14 N.W. 316. Concede that there was a mistake, so far as defendant was concerned; it was not mutual, for the instrument was unquestionably written just as plaintiff intended it should be. To authorize the reformation of a written instrument on the ground of mistake, "the evidence must be clear, satisfactory, and free from reasonable doubt. Wachendorf v. Lancaster, supra. Defendant testifies that the agreement arrived at, and which was to have been embodied in the writing, was that he was to have the goods for five thousand dollars, as they were when he last saw them, namely, on the evening of March 31st, and the proceeds of all sales made after the close of...