Vary v. Shea

• Decision Date: 24 April 1877
• Citation: 36 Mich. 388
• Court: Michigan Supreme Court
• Parties: Abiel T. Vary v. John Shea and another

36 Mich. 388

Abiel T. Vary v. John Shea and another

Supreme Court of Michigan

April 24, 1877

Heard April 11, 1877

Appeal in Chancery from Calhoun Circuit.

Decree reversed, with costs, and the bill dismissed.

W. D Adams, for complainant.

James H. Campbell, for defendants.

A court of equity, in order to ascertain and carry out the intention of parties to a particular transaction, will look at their situation and the whole transaction between them.--Frink v Cole, 10 Ill. 339.

To enable a court of equity, upon the ground of mistake, to reform a written contract, the mistake must be proved to be the mistake of both parties, so that by correcting the writing as requested, the court will make it express the contract designed to be entered into by both.

Where there has been no fraud or surprise to put the applicant for relief on his guard, it must appear that the mistake was not the consequence of his own want of recollection from inattention or of his own carelessness.--Deman v. Providence etc., R. R. Co., 5 R. I., 130; Wood v. Patterson, 4 Md. Ch., 335.

Chancery will exercise the power of reforming a written contract, sparingly and with great caution and only on the clearest proof of the intention of the parties and of the accident or mistake upon which the jurisdiction is invoked.--Reese v. Wyman, 9 Ga. 430; Lockhart v. Cameron, 29 Ala. 355; Ligon v. Rogers, 12 Ga. 281; Hunter v. Bilzen, 30 Ill. 288; Cleary v. Babcock, 41 Ill. 271; Davidson v. Geer, 3 Sneed (Tenn.), 384; Linn v. Barkey, 7 Ind. 69; Hall v. Clagett, 2 Md. Ch., 151; Leitensdorfer v. Delphy, 15 Mo. 160; Wemple v. Stewart, 22 Barb. 154; N. Y. Ice Co. v. N. W., etc., Ins. Co., 31 Barb. 72; City R. R. Co. v. Veeder, 17 Ohio 385; Shirely v. Welch, 2 Oreg. 288; Bailey v. Bailey, 8 Humph. 230; Lake v. Meechan, 13 Wis. 355; Fowler v. Adams, 13 Wis. 458; Miner v. Hess, 47 Ill. 170; Lyman v. United States Ins. Co., 2 Johns. Ch., 630; Shay v. Pettes, 35 Ill. 360; Adams v. Robertson, 37 Ill. 45; Triplett v. Gill, 7 J. J. Marsh., 432; Watkins v. Storkett, 6 Har. & J., 435; Goldsborough v. Ringgold, 1 Md., Ch., 239; National Ins. Co. v. Crane, 16 Md. 260; Harrington v. Harrington, 3 Miss. 701; Lyman v. U. S. Ins. Co., 17 Johns. 273; Pennell v. Wilson, 2 Abb. Pr. N. S., 666; 2 Robt. 505; Broadwell v. Broadwell, 6 Ill. 599.

To the same effect.--Tripp v. Hasceig, 20 Mich. 263; Case v. Peters, 20 Mich. 298.

The mistake of one party not enough, must have been mutual.--Mills v. Lewis, 55 Barb. 179; 37 How. (N. Y.) Pr., 418; Larier v. Wyman, 5 Robt. 147; Penell v. Wilson, 2 Id. 505; 2 Abb. Pr. N. S., 466; Brainard v. Arnold, 27 Conn. 617; Nevins v. Dunlap, 33 N. Y., 676; Briose v. Pacific, etc., Co., 4 Daly 246; Nelson v. Davis, 40 Ind. 366.

It is settled that equity will not relieve against a mistake where there is no element of fraud, imposition, undue influence, imbecility of mind, or the like, inferrible from the transaction.--Guynn v. Hamilton, 29 Ala. 233; Juzan v. Toulmin, 9 Ala. 662; Campbell v. Carter, 14 Ill. 286; Gordere v. Downing, 18 Ill. 492; Atlantic Fire, etc., Ins. Co. v. Wilson, 5 R. I., 479; Dow v. Kerr, Spears (S. C.) Ch., 413.

Mistake must be conclusively proved.--Kennedy v. Umbaugh, Wright (Ohio), 327; Gray v. Woods, 4 Blackf., (Ind.), 432; U. S. v. Munroe, 5 Mass. 572; Griswold v. Smith, 10 Vt. 452; Lyman v. Little, 15 Vt. 576; Preston v. Whitcomb, 17 Vt. 183; Cleveland v. Burton, 11 Vt. 138; Miner v. Hess, 47 Ill. 170; beyond a reasonable doubt, not merely by preponderance of evidence.--Stockbridge v. Hudson, etc., 102 Mass. 45.

Both the original intent and the fact of mistake must be established beyond a reasonable doubt, in order to entitle the parties to relief in equity.--Newton v. Holley, 6 Wis. 592; Coffing v. Taylor, 16 Ill. 457; see also Arnold v. Fowler, 44 Ala. 167; Picton v. Graham, 2 Disau (S. C.), 592; Lamb v. Harris, 8 Ga. 546; Emmons v. Stahlnecker, 11 Pa. St., 366; Salmon Falls, etc., Co. v. Portsmouth Co., 46 N.H. 249; Broadman v. Davidson, 7 Abb. Pr. N. S., 439; Edmond's Appeal, 59 Pa. St., 220; Arnold v. Fowler, 44 Ala. 167; Goltra v. Sanasack, 53 Ill. 456; Bunse v. Agee, 47 Mo. 270; Harter v. Christoph, 32 Wis. 248; Heavenridge v. Mondy, 49 Ind. 434; Rufner v. Mc Connell, 17 Ill. 212.

OPINION

Cooley, Ch. J.

The purpose of this suit is to obtain the reformation of a contract into which it is alleged an error has crept through mistake.

The contract bears date April 5, 1872. To an understanding of the alleged mistake it will be necessary to state the facts respecting which the parties were then in negotiation.

The defendant John Shea was the owner of three parcels of land in Calhoun county, the value of which is estimated at from twelve to fourteen thousand dollars, and which were encumbered to the amount of about eleven thousand dollars by mortgages, known as the Reed mortgage, the Stringer mortgage, the William Vary mortgage, the Miller mortgage and the A. T. Vary mortgage. All these mortgages except the Stringer mortgage were then owned or controlled by Abiel T. Vary, the complainant. Miller had also an execution levy on the lands for about four hundred and fifty dollars, which was controlled by the complainant, and on one parcel there was due to the state three hundred and sixty dollars. In this condition of affairs the complainant appears to have been desirous of realizing on the securities he owned or controlled and defendant John Shea was also desirous of selling a portion of the land to obtain means of payment. In the preceding December, Shea had made a contract with one Bly by which he bargained to convey to Bly one parcel of the land for the price of eight thousand dollars. But it was made a part of the agreement that Shea within forty days should procure the Stringer mortgage, on which something like twenty-nine hundred dollars was owing, to be discharged. This discharge Shea failed to obtain, and the contract fell to the ground in consequence. Had it been carried out, the eight thousand dollars was to have been paid to complainant to apply on the incumbrances owned or controlled by him.

The steps leading to further negotiations between the parties to this suit are not very fully explained, but it will be sufficient to state, that previous to April 5, 1872, it had been ascertained that one Rulifson would loan to Shea four thousand dollars or thereabouts, and take security therefor on the lands not bargained to Bly, provided the incumbrances were released and the amount owing to the state paid. This sum would enable Shea to pay off the Stringer mortgage and leave a surplus, the amount of which was somewhat uncertain inasmuch as the exact amount required to pay off the Stringer mortgage was not known. It seems to have been supposed that he would submit to some discount in order to obtain his money. The eight thousand dollars which Bly was to pay for the land bargained for by him would fall short a few hundred dollars of paying all the demands owned or controlled by complainant.

Two interviews took place between the parties April 5th, in the course of which complainant was in consultation with his counsel, and the interviews led to the drawing up of a contract in the office of the counsel. This contract when drawn up Shea refused to sign, and for the time being the negotiations fell through. As it seems to be agreed on all hands that this draft was in accordance with complainant's desires, and that he urged upon Shea its execution, it is given in full here, and will aid, we think, in the determination of the question whether a mistake was afterwards made or not.

"This agreement, made and entered into this fifth day of April, A. D. 1872, by and between Abiel T. Vary, of the township of Marshall, county of Calhoun, and state of Michigan, of the one part, and John Shea and Frances E. Shea, his wife, of the same place, of the other part, witnesseth, that whereas said John Shea and Frances E. Shea have this day made and executed under their hands and seals a certain indenture of mortgage to one Harmon D. Rulifson on the following described lands situate in the county of Calhoun, and state of Michigan, described as follows, to-wit: the northwest quarter of the southwest quarter and the southwest quarter of the southwest quarter of section twenty-nine and the northwest fractional quarter of the northwest quarter, north of the Kalazamoo river, of section thirty-two, all being in township two south of range six west, together forming one parcel, and containing eighty-four and twenty-seven one-hundredths acres of land more or less, which said mortgage is given to secure the payment to said Harmon D. Rulifson by said John Shea and Frances E. Shea of the sum of four thousand and thirty-six dollars and fifty cents at the expiration of three years from the date thereof, with interest at the rate of ten per cent. per annum, payable semi-annually until said principal sum be paid: Provided always, That any part of said principal sum may be paid at any time before due in sums not less than twenty-five dollars at any one time; all sums, both principal and interest, to be paid at the residence of said Abiel T. Vary, in the town of Marshall aforesaid; and whereas, also, said John Shea and Frances E. Shea have also assigned this day by an instrument under their hands and seals to said Abiel T. Vary the certificate number 644 of sale of university land, bearing date the 4th day of January, A. D. 1851, issued by the commissioner of the state land office of the state of Michigan;

"Now therefore, in consideration of the premises, the said Abiel T. Vary doth covenant and agree, to and with the said John Shea and Frances E. Shea that he will, on the best and most advantageous terms, pay and satisfy and cause to be...