Whitney Central Nat. Bank v. First Nat. Bank of Hattiesburg

• Decision Date: 22 September 1930
• Docket Number: 28697
• Citation: 130 So. 99,158 Miss. 93
• Court: Mississippi Supreme Court
• Parties: WHITNEY CENTRAL NAT. BANK v. FIRST NAT. BANK OF HATTIESBURG et al

130 So. 99

158 Miss. 93

WHITNEY CENTRAL NAT. BANK v. FIRST NAT. BANK OF HATTIESBURG et al

No. 28697

Supreme Court of Mississippi

September 22, 1930

Division B

Suggestion of Error Overruled, November 3, 1930.

APPEAL from chancery court of Harrison county, HON. D. M. RUSSELL Chancellor.

Suit by the Whitney Central National Bank against the First National Bank of Hattiesburg and others. Decree for defendants, and complainant appeals. Affirmed.

Affirmed.

Milling, Godchaux, Saal & Milling, of New Orleans, La., and R. C. Cowan, of Gulfport, for appellant.

If through fraud, mistake or accident the writing has not been made to speak the agreement of the contracting parties, it will be reformed to truly represent what the parties intended it should; and, when thus reformed, it will be enforced as if originally so drawn.

Simmons v. North, 3 S. & M. 67; Peques v. Mosby, 7 S. & M. 340; Dunbar v. Newman, 46 Miss. 231; Phoenix Ins. Co. v. Hoffheimer, 46 Miss. 645; Willis v. Gattman, 53 Miss. 721; Cummings v. Steele, 54 Miss. 647.

A court of equity will grant relief in cases of mistake, in written agreements, not only where the fact of the mistake is expressly established, but is fairly implied from the nature of the transaction.

Phoenix Ins. Co. v. Hoffheimer, 46 Miss. 645, 657.

To hold that a court of equity could not correct mistakes for the reason alone that the parties used the terms they actually intended to use would be to curtail its powers to a hitherto unheard extent.

Miles v. Miles, 84 Miss. 624, 37 So. 112.

A deed which expressed the then existing intention of the grantor, which intention was the result of a mistake comes within the power of an equity court to reform for mistake.

Hoy v. Hoy, 48 So. 903, 93 Miss. 732.

Accident differs from mistake in that the latter always supposes the operation of the will of the agent in producing the event, although that will is caused by erroneous impressions on the mind.

21 Corpus Juris, p. 83.

The court will rectify a voluntary deed after the death of the donor where it is clearly shown that, through mistake, the deed failed to carry out the proved intention of the donor.

Spencer v. Spencer, 75 So. 770.

Gardner, Brown & Backstrom, of Gulfport, Stevens & Heidelberg, of Hattiesburg, and J. L. Taylor and J. C. Ross, both of Gulfport, for appellees.

It is generally laid down that reformation will not be awarded on account of a mere unilateral mistake, a mistake of but one party--standing alone. Where, however, the instrument does not express the true intent of the parties, owing to mistake on one side coupled with fraud or inequitable conduct on the other, relief will be freely given.

5 Pomeroy's Equity Jurisprudence, Secs. 4728, 4730.

To constitute a mutual mistake, so as to authorize reformation of an instrument, the minds of the parties must meet in common intent.

Cottam v. Frank, 76 A. 489.

The phrase mutual mistake as used in equity, means a mistake common to all the parties to a written contract or instrument.

Page v. Higgins, 150 Mass. 27, 31.

A party who seeks to reform a written instrument has the burden of proving mutual mistake beyond a reasonable doubt. Parol testimony to reform must be received with great caution and distrust. The burden of proof grows heavier upon the complainant by the lapse of time before seeking reformation.

Watson v. Owen, 142 Miss. 676, 107 So. 860; Jones v. Jones, 88 Miss. 784, 41 So. 373; St. Paul Fire, etc., Co. v. McQuaid, 114 Miss. 430, 75 So. 255; Rogers v. Clayton, 115 So. 108.

OPINION

Griffith, J.

The facts in this case are undisputed, and while, by force of the chancellor's decree, all reasonable inferences run in favor of appellees, we will, for the purpose of discussion, reverse the inferences and state the facts and the reasonable inferences to be drawn therefrom as favorably as may be in behalf of appellant. So doing, the facts are: John R. Pratt, the owner of considerable property, found himself heavily involved by reason chiefly of indorsements on the paper of a business concern in which he had an interest. This concern desired an extension of its indorsed obligations which the appellee banks, the holders of the paper, were willing to grant, provided the paper were secured by a mortgage by Mr. Pratt on all the unincumbered property owned by him. Mr. Pratt was agreeable to this arrangement, but, being unwell and advanced in years, he was unwilling to incumber all his property for these indorsement debts without at the same time doing the honorable part of including all the individual or personal debts which he owed to several different banks, appellant among them.

He commissioned his son to consummate the matter in the manner last mentioned; and the son, accepting the task, made inquiry of all the banks and ascertained the amounts due each. In the course of this inquiry, he was informed by the business concern heretofore mentioned that the note for ten thousand dollars due appellant bank had been arranged to be taken care of by said concern, and that it would not be necessary to carry that item into the mortgage arrangement. Acting upon the faith that this assurance was genuine, the son, in calling a conference of the banks, omitted appellant bank, and, in the conference at which the terms of the security were agreed upon, appellant bank was not present nor represented. The son did not mention in the conference that anything was due appellan...