133 Wis. 533 | Wis. | 1907
We find difficulty in understanding the meaning of the trial court intended to be expressed by the findings, especially in view of the evidence. By finding 2 it is declared that on July 9th plaintiff agreed with Welton “to purchase one quarter of said section 33” at terms as to price and credits carefully specified. It is undisputed that all these terms were agreed upon before commencing the draft of the contract. Welton himself so testifies unambiguously, so we assume that finding relates to a time prior to the writing. Then findings 3 and 4 describe the clerical process by which the written contract was prepared in duplicate; and then comes finding 5, upon which alone can the judgment rest. It is as follows:
“That plaintiff talked of purchasing the N. W. J of section 33 in said township 146, but that no contract of sale was entered into or agreement made until the writings above mentioned were executed, at which time plaintiff agreed to buy the N. E. ¿ of section 33.”
Either this means that until the signing of the paper the minds of the parties never in fact met on the question which of the four quarters of section 33 plaintiff wished and had decided to purchase, or that, as mixed matter of law and fact, their transactions prior to that moment had not reached the stage of legal contract or agreement. In deference to our confidence in the legal learning of the trial judge, we should assume the former meaning but for the consideration that all the evidence, including the testimony of Welton, shows clearly that before bringing forth the contract blanks to be
“At the hotel they said they would take the quarter, and they gave me the description of the quarter they wanted. . . . I simply gave it to him [in dictating] as I remembered he had given it to me.”
Indeed, respondents’ counsel frankly concedes that such understanding had been reached, although he contends against any conclusion that the N. W. ¿ ivas the one agreed on. We therefore must conclude that the trial court did not intend to find that a meeting of the minds of the parties had not in fact been reached before the writing. If the minds of the parties had met on the sale and purchase of a particular parcel of land and they signed a writing which both supposed described that parcel, but which, by clerical error, described some other, a case is presented for a court of equity to ascertain the true agreement and interpose to prevent the writing, as fár as variant, being enforced as the contract of the parties, in absence of negligence or acquiescence. Hurd v. Hall, 12 Wis. 112; Maldaner v. Beurhaus, 108 Wis. 25, 33, 84 N. W. 25; Kammermeyer v. Hilz, 116 Wis. 313, 92, N. W. 1107; Rowell v. Smith, 123 Wis. 510, 102 N. W. 1; Scheuer v. Chloupek, 130 Wis. 72, 109 N. W. 1035; 2 Pom. Eq. Jur. (3d ed.) §§ 853, 859, 869, 870; 4 Pom. Eq. Jur. (3d ed.) § 1377. There is no question or dispute upon the evidence that both parties did suppose the writing contained a correct description of the quarter-section previously agreed on. Welton says he attempted to dictate the proper description thereof. Both plaintiff and Ehodes say they wrote mechanically the words which Welton dictated, supposing, of course, that they expressed the correct description.
We thus are brought to consider what was the parcel of land on which the minds of the parties ■came together before
This being settled, the clerical error and mutuality of the mistake by which the description of another parcel got into the written contract is, as we have said, obvious, and is entirely conceivable when we remember that all three parties had in mind two known quarters of land together making up the tract or farm which plaintiff was attempting to secure. Merely the description of the wrong one of those two quarters unconsciously slipped from the tongue of Welton and was transferred to writing by the two scriveners, mechanically, neither of them going through the mental operation of translating the words into a mental picture of the parcel itself,— not a surprising event when we appreciate the symbolic and somewhat arbitrary use of government subdivisions. Nor is it at all made to appear that this, the real mistake, was discovered before execution and delivery of the papers, even if we accept Welton’s version of the manner in which the number of the section became changed from 32 to 33 in the duplicate received and retained by him. He does not pretend that he noticed at all what subdivision of either section was written, but merely the number of the section, which being an even number and, therefore, owned by the United States, of course attracted his attention and he caused that to be changed without observing the other portion of the mistake in dictation, of which he was of course unconscious, if honest. We are convinced that the writings signed, whichever duplicate of the land contract be -deemed the binding one, declares plaintiff to have purchased that which he never agreed to by such a mistake as to enable a court of equity to look back of the writing to the real agreement, under the
We are unable to find laches on plaintiff’s part to bind him, on the theory of ratification, to this written expression of a contract which he never made. One duplicate of the contract was sent him some weeks after it was executed. There was nothing to suggest need of re-examination, except as he had occasion to act thereunder as to payments. Besides this, no amount of inspection of the duplicate in his possession would have suggested any possibility of defendants’ present claim that a parcel of their land, other than that which he intended to purchase, had been sold him, for his paper contained as description “northeast of 32,” which defendants did not own, so that they must of course either consent to correction or return plaintiff’s money. By retaining in their custody the paper on which they now claim, they of course prevented any inspection by plaintiff to discover the mistake therein. The evidence is direct and credible that he appealed to defendants for correction as soon as he in fact learned of the mistake.
By the Court. — Judgment reversed, and cause remanded with directions to render judgment canceling the written contracts described in the complaint, and awarding plaintiff judgment against the defendants Bode Dow and George Dow