148 P. 315 | Mont. | 1915
delivered the opinion of the court.
Henry Brundy died intestate, without issue and without father, mother, brother or sister him surviving. The plaintiff (respondent here) is his widow; she is seventy-nine years of age, inexperienced in business, destitute of legal knowledge, and
On July 12, 1912, the plaintiff, as party of the first part, and the claimants, as parties of the second part, entered into an agreement, hereinafter referred to as Exhibit “A,” which recites : “That for and in consideration of one dollar, cash in hand paid by the said parties of the second part to the said party of the first part, the receipt of which is hereby acknowledged, and upon the further consideration that the parties of the second part, by their attorney in fact and trustee, shall join with the said party of the first part * * * in the execution to one A. B. Wolvin * * * of a certain lease and option, and deed to purchase certain mining claims, the title to which is now vested in the heirs of the said Henry Brundy, deceased, subject to the rights of the party of the first part therein, the said party of the first part hereby relinquishes all right of dower, which she has or may have in the property, real and personal, * * * of her deceased husband, Henry Brundy, * * * and agrees to accept one-half of the proceeds of the sale of said property to said A. B. Wolvin * * * ; also one-half of all personal property, in full of her legal rights therein, either as widow or heir at law of said Henry Brundy, deceased.”
The sale to Mr. Wolvin having been arranged, a lease option, a deed and an escrow agreement — hereinafter called Exhibit “B” — were executed the same day, the respondent joining with the claimants therein. Exhibit “B” provides: “The within deed is hereby placed in escrow in the State Savings Bank of Butte, Montana, to be delivered to A. B. Wolvin, his successors or assigns, upon payment of the following sums of money, to-wit:
The complaint was filed on the 17th day of March, 1913. In addition to the facts above stated it avers that by reason of plaintiff’s age and inexperience she left the details of the estate of Henry Brundy to the care of the attorneys thereof, who, for the purpose of securing accurate information concerning the relatives of said intestate to be embodied in the petition for letters of administration, consulted Stephen D. Sexton, then in Butte representing the claimants and asserting claims for them as heirs of said intestate, and upon the information thus obtained, erroneously set forth in said petition that there were surviving grandchildren of said intestate, of all of which she was ignorant; that the claimants have not and never had any interest whatever in said estate or any thereof; that shortly after the death of Henry Brundy they made themselves known and led her to believe, and she was otherwise led to believe, and she at all times until a short time prior to the filing of her complaint did mistakenly believe, that her interest in the estate and property of her husband was not to exceed a one-half interest besides dower, and she was not advised to the contrary until a few days before the commencement of this suit; that while she was laboring under this mistake, negotiations were pending for the sale referred to in Exhibit “A,” during
A demurrer to the complaint was interposed by the claimants, and as the questions raised thereby recur upon the evidence, discussion of them will be deferred until their application to the whole case can be considered. The demurrer was overruled; whereupon the defendants answered. The separate answers of the bank and Allen are not material to the controversy at the present stage. The effect of the answer of the appealing defendants is to deny the essential allegations of the complaint, save the widowhood of the plaintiff; to allege their heirship and .right to share in the estate of Henry Brundy, deceased, and recognition of such right by the plaintiff; to assert a consideration for Exhibits “A” and “B,” and that the parties have acted thereon. The affirmative allegations of the answer are put in issue by a reply.
Trial was to the court sitting without a jury. Findings of fact and conclusions of law in substantial accord with the complaint were filed, and judgment was entered conformable to the prayer thereof. A motion for new trial was made and denied.
Thirty-three errors are assigned, based upon the overruling of the demurrer, the facts found, the offered findings refused, the conclusions of law, the judgment and the refusal of a new trial. Their effect is to present the following contentions: 1. That the complaint does not allege nor the the evidence show the contracts in question to have been executed under the influence of mistake, mutual or otherwise; 2. That the complaint does not allege nor the evidence show any “sufficient reason for the delay in instituting the present action, i. e., excusing the delay in ascertaining plaintiff.’s alleged rights”; 8. That there was a consideration for the plaintiff’s execution of the contracts, and neither the complaint nor the evidence discloses any offer by her to place the claimants in statu quo; 4. That the plaintiff is estopped to demand a rescission by her acceptance and retention of benefits under the contracts, and by her resistance to an attempt of the claimants to recede therefrom; 5. That certain findings made, and the refusal of certain others proposed, none of which are germane to the foregoing propositions, were erroneous; 6. That the money judgment against Canby was improper. Of these in their order.
1. Whether there was a mistake or not depends primarily upon the status or relationship of the claimants to the estate of Henry
Now, the complaint alleges with some elaboration that the
The court found as a matter of fact that before and at the
It is said, however, that mutual mistake “is untenable if either party knew, or, what is the same thing, had the means of knowing, the subject matter of the alleged mistake. Certain it is that plaintiff and her alter ego, Allen, were possessed of the means of knowledge, and any exercise by them of the duty of inquiry would have disclosed everything that they now claim they have discovered.” Means of knowledge, generally speaking, do not affect the fact that a mistake was made, but only the availability of it as a basis for relief. If a logical exception be claimed to exist where the means of knowledge are inherent in the subject matter itself, such exception can be applied here only by virtue of the supposed presumption that the law is known to all. There is a rule that ignorance of the law does not excuse, but we know of no presumption imputing accurate legal knowledge to the world at large. The necessary result of such a postulate would be that a mistake of law can never occur because, accurate knowledge being in every instance present in the mind which entertains the wrong notion, to entertain such notion is no mistake, but deliberate choice. How far this is from the true state of affairs may be gathered from the following provisions of our Code: A party to a contract may rescind the same if his consent thereto was given by mistake (Rev. Codes,
But the claimants intimate other grounds for their position— the facts, for instance, that Governor Allen, the administrator and supposed agent of the plaintiff had seen the statute of succession and that the estate had counsel — in consequence of which, coupled with the presumption above mentioned, mistake on her part is legally unthinkable. While there is evidence that a part of the statute of succession had been read to Governor Allen, there is nothing whatever to show that subdivision 4 of section 4820 had' been called to his attention until long after the contracts were signed. The estate had counsel, it is true, but they were not counsel for the plaintiff, and they, misled as to the facts, unwittingly misled Governor Allen as to the law, and it is not at all strange that he, a layman, though he had seen the law, should have distrusted his own capacity to understand it. The theory of the argument is that only blameless mistake will afford a basis for relief. Such is not correct: “The term ‘mistake’ involves the conception that he to whom the fault expressed by it is imputed has been guilty of some degree of negligence which may or may not be excusable when viewed in the light of the circumstances of the particular case. Courts of equity are not bound by cast-iron rules. The rules by which they are governed are flexible and adapt themselves to the exigencies of the particular case. Relief will be granted when, in view of all the circumstances, to deny it would permit one party to suffer a gross wrong at the hands of the other.” (Parchen v. Chessman, 49 Mont. 326, 339, 142 Pac. 631.) These observations have special application to mutual mistakes of law, in order
Circumstances excusatory of plaintiff’s mistake appear in ample measure. The fact that even after she brought this suit the claimants have felt warranted in contesting her construction of the law,- that painstaking counsel, the learned judge of the court below, and the members of this court have all been called upon to participate in its settlement, furnishes at least some explanation for the ignorance of an old lady inexperienced in business, unfamiliar with the law, and dependent for guidance upon others whose well-meant efforts to be correct but led them further into error. In general, it may be said that the evidence clearly and affirmatively discloses that while things occurred before and at the time the contracts were made, to increase her reliance in the misapprehension she then had, nothing at all happened until just prior to the bringing of this suit to suggest to her that she might have been mistaken or that there was anything to correct. In our opinion, a finding denying mutual mistake would have been impossible.
It was also expressly found that had the plaintiff, or the administrator, known, believed, suspected or been told that claimants were not in fact heirs of Henry Brundy, she would not have executed Exhibits “A” and “B.” The criticism of this finding seems based rather upon the idea that her ignorance was inexcusable and therefore of no avail, than upon the view that it is without foundation in the testimony. However, that may be, Exhibit “B” itself, together with her testimony and that of Governor Allen, afford ample warrant for the finding.
2. The subject of delay is adroitly made to suggest two aspects, viz.: In commencing suit, and in the ascertainment by plaintiff
We take it to be the position of the claimants, however, that this is not a ease of mere delay in bringing suit, but a case
3. Save as an aid in determining the duty of the plaintiff to make or offer restoration, the question of consideration cannot be deemed of great importance. Consideration is present in practically every contract sought to be rescinded for mistake and is not of itself any obstacle to rescission. The real question arises
Whether the rule that rescission cannot be had for mere mistake unless the party against whom it is adjudged can be
The property sold consisted of mining claims. The deed contains no express warranties, and the only liability which, could possibly arise from it against anyone is for the breach of the warranties implied by law from the use of the word “grant,” viz.: complete title and freedom from encumbrances. So far as the claimants are concerned, this liability is purely theoretical. An effort on the part of Wolvin to proceed as against them would be effectively met by the fact — admitted by him, adjudged as to them — that they joined in the deed through his and their mistake. Their counsel suggest that assuming no right in them, they still stand as guarantors for Mrs. Brundy; but no intention to act in any such capacity can be implied from the deed or existed íd fact. The whole doctrine of restoration is equitable and requires merely that the party against whom rescission is adjudged shall be no worse off than before the contract. The bare possibility that they, instead of the real and efficient grantor, may be sued by Wolvin on account of the property — a possibility shared by all mankind and without hope of fruitful result to him — is not a substantial change in their position.
The claimants contend that because Exhibit “A” recites one
Notwithstanding the rather vigorous argument to the contrary, it is quite apparent that the dollar recited in Exhibit “A” was never paid. Sexton says he did not pay it, and he, as the representative of the claimants at that particular time and for the particular purpose of closing the transaction, is the person by whom it should have been paid; Allen says he did not receive it, and he, as the representative of the plaintiff, is the person to whom payment would naturally have been made. It is true that Mrs. Brundy, whose examination was for humane reasons obviously restricted to essentials, did not testify on the subject and it is possible, of course, that she received the dollar from the claimants through some other channel; but such bare improbable possibilities rendered still more improbable by the
Contention is also made that some expenditures were made on the part of the claimants, by Stephen D. Sexton, in procuring their assent to the transactions in question. These, of course, were matters proper to be shown in defense to aid the court in completely determining the rights of the parties. In the absence of any proof of the amount of such expenditures, they could not be considered, assuming them to be otherwise allowable.
The second ground of estoppel is that on the day after the papers were executed and deposited in the bank, Stephen D. Sexton attempted to recall the papers and avoid the whole transaction because of some minor fault found by him with the proceedings having nothing whatever to do with the supposed rights of the parties. This attempt was frustrated by counsel and by the administrator, a small monetary concession being made to Mr. Sexton. It is to be noted that all parties were at this time
5. Specific exception is taken to certain findings and to the refusal of certain others proposed, which are not strictly within
Upon the whole case we are satisfied that justice was done— and this without error prejudicial to anyone. The judgment and order appealed from are therefore affirmed.
'Affirmed.