301 Mass. 429 | Mass. | 1938
The plaintiff in this bill in equity asks that the instrument of assignment of a tax title be reformed and corrected “so that the consideration therein shall be $2,115.34 and not $3,137.24.” The case was tried together with the case of Snow v. Marlborough, ante, 422, in which the main facts are set out. The tax title in question is that therein referred to as the 1931 tax title. In this suit the trial judge found that the consideration for the tax title in question was $2,115.34, and reported the case to this court upon the stipulation that “if I was in error such decree should be entered as equity and justice requires. Otherwise decree entered upon my findings be affirmed.” No decree, however, was entered. See G. L. (Ter. Ed.) c. 214, § 31. In his “Report of Facts” he finds “that said instrument of assignment should be reformed and corrected setting forth the consideration paid in . . .
All the evidence is reported, and it is our duty to examine it and decide the case according to our own judgment, giving due weight to the findings of the judge whose decision, based wholly or in part upon oral evidence, will not be disturbed unless plainly wrong. Malden Trust Co. v. Brooks, 291 Mass. 273, 279. Markiewicus v. Methuen, 300 Mass. 560. There is no occasion to restate the familiar and governing principle of law as to the reformation of written instruments on the ground of mistake. See Perkins’s Case, 278 Mass. 294, 301. Upon conflicting oral testimony, the judge could have found, as he did, that a mutual mistake existed, and we cannot say that this finding was not warranted upon the evidence. The total amount which was paid by Snow was $3,362.02. It is not disputed that $224.78 of this amount was the consideration for the assignment of the 1930 tax title. As to the remainder of this total sum which was paid, it was open to the judge to find that $1,021.90 was received by Osgood, not as treasurer, but as tax collector, and in payment for the taxes for the years 1934 and 1935; that he delivered two tax collector’s receipts to Snow or her attorney for these payments and. entered the payments upon the tax collector’s books. From the judge’s finding it is evident that he did not believe other testimony, to the effect that it was agreed that Snow would and did pay $3,137.24 for the second tax title, that is, for the tax title of 1931.
As a practical matter, the statement of the consideration in the instrument is not necessarily conclusive. Oral evidence is admissible to show that a mistake was made in the computation of the consideration so stated. In the case of Cardinal v. Hadley, 158 Mass. 352, the consideration in the plaintiff’s deed was stated to be $1.00, and he
In accordance with the terms of the report, decree is to be entered in accordance with the order therefor, with costs.
Ordered accordingly.