Webb v. Hammond
| Decision Date | 17 November 1903 |
| Docket Number | 4,458 |
| Citation | 68 N.E. 916,31 Ind.App. 613 |
| Parties | WEBB v. HAMMOND |
| Court | Indiana Appellate Court |
From Superior Court of Marion County (62,210); Vinson Carter Judge.
Suit by Catharine J. Hammond against Mary A. Webb and husband. From a judgment for plaintiff, defendant Mary A. Webb, appeals.
Reversed.
F. E Gavin, T. P. Davis and J. L. Gavin, for appellant.
W. N Pickerill, for appellee.
Action by appellee against appellant to reform a contract and to recover a sum of money alleged to have been paid under such contract. Demurrer to the complaint overruled, and answer in denial. Appellant filed a cross-complaint asking affirmative relief, upon which issues were joined by answer. Trial by the court, finding and judgment for appellee, motion for a new trial overruled.
Overruling the demurrer to the complaint and the motion for a new trial are assigned as errors.
The complaint avers that the appellant and appellee are sisters, being daughters of Robert Roe, deceased. By the will of the deceased, appellant and appellee were each devised twenty-six and two-thirds acres of land in the northeast quarter of section eighteen, township sixteen, range four, in Marion county, Indiana; that deceased had three daughters and two sons, to the latter of which he devised forty acres of land each, and to his three daughters twenty-six and two-thirds acres each. This division of land by will was made upon the basis that there were only 160 acres in the quarter section; that upon a survey of the land it was ascertained that there were 164 64-100 acres, and that the actual area of land devised to appellee and her two sisters was twenty-seven and forty-four hundredths acres; that said division of land under the will was made into strips running entirely across said quarter section east and west; that the several tracts of land so devised were surveyed at the instance of all the parties in interest, and that each of the devisees thereupon went into possession of their respective tracts. The complaint avers that appellee being desirous of acquiring the interest of appellant in the partition of the real estate devised to her lying east of the Allisonville gravel road, upon which were located the buildings of the "Home farm," she entered into a written contract with appellant, by the terms of which appellee was to deed to appellant the land which had been devised to her west of said gravel road, and appellant was to deed to appellee that portion of the land devised to her, lying east of said road; that it was further agreed that both of said tracts were to be surveyed, their differences in area ascertained, if any, and the one having the greater area was to receive from the other for such excess, payment therefor at the rate of $ 150 per acre; that appellee was also to pay the appellant the sum of $ 250 for the buildings which were then known to be located upon that portion of the land devised to appellant, lying east of said road; that thereupon they signed a written contract which they both believed to express what they had mutually agreed upon; that pursuant to the agreement, as they understood it, they had the two tracts of land surveyed--i. e., appellee's tract west of said road and appellant's tract east of said road--and the difference given them was three and ninety-seven hundredths acres which appellant's land exceeded in acreage that of appellee's; that upon said survey as reported to them by the surveyor appellee paid to appellant $ 595.50 for said supposed excess, and also paid to her $ 250 for the buildings located on that part of the real estate owned by appellant lying east of said gravel road; and thereupon they exchanged deeds in carrying out the supposed terms of the contract between them. It is then averred that the actual difference between said two tracts of land was two and seventy-four hundredths acres, instead of three and ninety-seven hundredths acres, as was learned from the surveyor who had surveyed the same, and that appellee paid to appellant for one and twenty-three hundredths acres more than was actually conveyed to her, being the sum of $ 184.50 too much money; that said error was the result of a miscalculation of said surveyor; that appellee thereupon demanded of appellant that she rectify said error, and refund to her said sum of $ 184.50, which she refused to do.
The complaint further avers that the contract as written provides that appellant and appellee agreed to convey lands as follows: That appellant was to convey to appellee the land which the former owned on the east side of the Allisonville gravel road, as well as the land which the latter herself owned on the east side of said road, and which she held by devise under the will of her father, and that appellee was to convey to appellant not only the land which appellee owned on the west side of said road, but also the land which appellant owned on the west side of said road, which she already owned by devise from her father; that said contract as written required of the parties thereto to pay to the other the difference between said tracts of land at the rate of $ 150 per acre, thus causing appellee to pay to appellant for land which she (appellee) already owned, at the rate of $ 150 per acre. It is also alleged that the contract as written was and is not what the parties thereto had agreed upon and intended it should be, and that the signing of said contract was done under a misapprehension of what it really was and what was really set out therein, and was a mistake of fact, and not of law, and was the mutual mistake of all the parties thereto; that all of the negotiations prior to the signing of said contract were as to what amount appellee should pay appellant for the buildings on that portion of the land east of said road which appellant was to convey to appellee, and the price per acre that should be paid for the difference in the acreage; that in the settlement which they entered into appellant and appellee acted under the belief that such was their agreement and understanding; that the contract, as appellee claims it should be, was attempted to be carried out in good faith by each of the parties; that appellee did not know of the mistake the surveyor had made in determining the difference in the acreage of said tract of land until a settlement had been made and the money paid as hereinafter stated. The contract as written is made an exhibit to the complaint. The prayer of the complaint is that the contract be reformed so as to express the agreement between the parties, and for judgment for the amount claimed to have been overpaid by appellee.
The theory of the complaint is that, as each of the parties owned land on both sides of the road, the appellee agreed to deed to appellant her part on the west side in consideration that appellant should deed to appellee her tract on the east side, and one party should pay to the other $ 150 an acre for the excess, if any, in the acreage; while it is the theory of the cross-complaint that one party should pay to the other $ 150 an acre for the excess in area, of the entire acreage on either side of the road, and that the excess in acreage now owned by appellee under the contract and conveyance is five and forty-three hundredths acres, and that appellee had failed to pay the amount due by $ 219. If appellant's theory is correct, the terms of the contract required appellee to pay to appellant $ 150 per acre for the excess in the acreage of her tract on the east side of the road, which she already owned under the will.
The first question for decision is, are the facts pleaded in the complaint sufficient to warrant a reformation of the contract? A complaint to reform a contract, to be good as against a demurrer, must set forth the terms of the original agreement, and also the agreement as reduced to writing, and point out with clearness wherein the mistake was made. It must also aver that the mistake was mutual. Smelser v. Pugh, 29 Ind.App. 614, 64 N.E. 943; Citizens' Nat. Bank v. Judy, 146 Ind. 322, 43 N.E. 259.
The complaint before us contains a clear and succinct statement of the contract as actually made, understood, and intended by the parties to be reduced to writing, and the agreement actually reduced to writing and signed by them. The material differences between the contract as actually made and agreed upon and the one signed by the parties are clearly and specifically stated, and, as the demurrer admits the facts...
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