Evarts v. Steger, 5 Or. 147

Evarts v. Steger

5 Or. 147 | Or. | 1874

By the Court,

Bonham, C. J.:

Plaintiff’s cause having been dismissed by the court below, on motion of defendants’ counsel for decree upon the pleadings, the same was heard and determined in this Court virtually upon the demurrer to the complaint, and is decided upon the third ground thereof, to wit: “Thatthe complaint does not state facts sufficient to constitute a cause of suit.” It is well settled that the objection to the jurisdiction of the court and to the sufficiency of the facts stated to constitute a cause of suit, are not waived by answering over, but may *150thereafter be properly urged in the appellate court as well as in the court below. True, for the convenience of practice, it is proper to raise such objections first by demurrer; but the failure to do so is no waiver of the right.

Although upon the argument of this cause it was insisted by counsel for respondents that the Circuit Court had no original jurisdiction to entertain plaintiff’s suit in the absence of a previous adjudication by the County Court of Umatilla County in the premises, and although it was further insisted that the terms and condi bions of the undertaking sued upon were of such a character that the same could not • be reformed by a court of equity, yet this Court has thought proper to only pass upon the question whether the complaint sets out facts sufficient in any event to entitle the plaintiff to the relief prayed for.

It appears, from the allegations and argument of counsel for appellant, that he intended to base his claim to relief in the reforming of Steger’s undertaking as administrator, on the ground of accident or mistake in' its execution. Allowing that this instrument is of such character that it might be reformed by a court of equity, has the plaintiff stated facts sufficient to entitle him to the relief prayed for? We conclude that he has not. And in support of this conclusion, we refer to the allegations of the complaint on this subject. The only averment in the complaint, touching the omission to insert a penal sum in said undertaking, reads as follows: “But plaintiff shows that the words or phrase, ‘In the sum of ten thousand dollars, payable to whom it may concern,’ were accidentally omitted therefrom by the said George A. La Dow; and that the defendant signed said undertaking; and that John Davis, William Penland, Nelson Jones and J. T. Hinton, justified thereto with the intention of making it appear that they actually were sureties, that the said G. W. Steger should faithfully perform the duties of his trust, and that they were severally worth the amounts mentioned in their justification; and that the words ‘am worth,’ which should have been inserted in said justification immediately after the words, ‘I, the said John Davis,’ were accidentally omitted by the said George A. La Dow.”

*151The complaint further shows that La Dow was the attorney for Steger in drafting the undertaking in question, but it nowhere appears that the sureties were privies to, or cognizant of, any mistake made by said La Dow, or that it was ever agreed or understood, by said sureties, that they were to, or had signed, an undertaking in the penal sum of $10,000, or any other fixed sum. Neither does it appear, from the complaint or otherwise, that said sureties had any knowledge that Steger was required, by the County Court of Umatilla County, to execute an undertaking in the sum of $10,000, or any other sum. It is true that it does appear, from the affidavits of the sureties appended to the undertaking, that they are worth the aggregate sum of $10,000, over and above debts and liabilities and property exempt from execution; and that is the only intimation contained in the complaint, that it was understood or agreed by them that they were to be held and bound in that sum.

It does not appear that there was any blank left in the undertaking for the penal sum at the time that the same was executed, or that there was any understanding with the sureties that any penal sum should afterwards be inserted so as to bring the case within the rule invoked by appellant, and in support of which he cites Wright & Co. v. Harris, 31 Iowa, 272; Inhabitants of South Berwick v. Huntress, 53 Maine, 89; and 15 La. Ann. 551.

We think, then, that there is no sufficient allegation in the complaint to negative the idea that the undertaking, as signed by these sureties, was, in its terms, the instrument which they intended to sign. In this conclusion we are supported by the presumption that an agreement, when reduced to writing, has all its terms embraced in such written contract. (1 Story’s Eq. Jur., \ 153.)

To entitle a party to relief in a court of equity against a mistake, it must appear that such mistake was mutual; that it was the mistake of both parties to the contract. And as we have before indicated, there is nothing in this complaint, or at least no sufficient averment to show that respondents were mistaken as to any of the terms of the contract by them executed. (Id. 142.) •

Decree affirmed.