84 N.J. Eq. 166 | N.J. | 1915
The opinion of the court was delivered by
The complainant holds in due course a negotiable promissory note drawn by Thomas F. Purcell to his own order, endorsed by him and by M. William Hilbert, John H. Eastwood and William Fessler, in the order stated. The note was written, and, as endorsed, was for $33, with a blank space between the words “thirty-three,” and dollars; it also contained, on the upper left-hand corner, the figures $3,300.00, and in this form was discounted by the complainant, for the account of Hilbert, as a note drawn for $3,300, the proceeds of which Hilbert drew. After non-payment and protest, the complainant filed its bill of complaint against the maker and endorsers, praying that the note be reformed to read $3,300, instead of $33, as written, upon the ground that through a mutual mistake of all the parties to the transaction, the note did not express their true intention. The only defendants served with process were Hilbert and Fessler, the others being non-residents and not brought within the jurisdiction of the court, Hilbert made no defence, but Fessler filed an answer denying the alleged mistake and averring that he had no intention to endorse for any sum other than $33, as written in the note. The master who heard the case for the chancellor ad
There are two reasons why this decree cannot be sustained. The first is, that the court did not have before it all the parties which the decree undertakes to bind, for, by its terms, it makes the note read, as one given for $3,300 against the maker and all the endorsers, and as expressing, “the true intention and meaning of the parties to said note.” There is no evidential proof in the case that either the maker or Eastwood, who endorsed the note prior to Fessler, intended to make a note different from the
That the court did not have jurisdiction over the maker" and prior endorser is no excuse for reformation as to Fessler, for, if the instrument is to be reformed, it must be reformed as to all parties to it, and bind each alike, and that manifestly cannot be done in the present state of this record.
The second reason is, that there is no sufficient proof of the mutual mistake between Hilbert and Fessler set up in the bill of complaint. There is some proof to which reference will be made, but it is not of that character which the law requires to support the reformation adjudged, for before equity will reform an instrument upon the ground that through a mutual mistake it does not express the intention of the parties, the mistake must be shown to have been mutual by clear and convincing evidence, for this remedy will not be granted upon a probability, nor upon a mere preponderance of evidence, but only upon clear proof, amounting to a reasonable certainty, that the mistake was mutual, and that both parties intended to express what does not appear in the writing, or that they intended something different from what is to be implied from the words used.
The complainants’ case rests almost entirely upon the testimony of Hilbert, for whose accommodation the note was endorsed. What he says is, that he told Fessler that he needed about $3,300, and wanted to know whether he would endorse a note for him for that sum; that Fessler agreed to do this, and
It is not necessary to recite all of Fessler’s testimony; it is sufficient to say that he absolutely denies all that Hilbert said with reference to the amount of the note, and says that after he endorsed it, he paid no further attention to it until after it was protested, and then he was told by an officer of the bank that it was for $3,300.
So far as the testimony of these two witnesses is concerned, it is practically the oath of one against the other, and under such circumstances, nothing more appearing, the credibility of neither witness being assailed, it cannot be said that the complainant has made out such a case as would warrant a reformation, for. in addition to the oath of Fessler, we have the very pertinent fact that the writing corroborates him. But the complainant urges that there are circumstances in this case which sufficiently corroborate Hilbert to bring the complainants’ case within the rule above stated. One is, that after the note was protested, Fessler and his attorney went to the bank and asked to see the note, and when it was presented, the attorney said, “Well that note is only
The next circumstance relied on is, that Fessler had taken from Hilbert some bank stock as collateral. The paying teller of the bank testified that when Fessler and his attorney came to the bank to see about the note, Fessler said that he was secured, that Mr. Hilbert had assigned some stock to him, and asked whether the stock had been transferred on the books of the bank, and from this it is argued that the note must have been intended to be more than $33, otherwise Fessler would not have asked or taken security. But the attorney, who was with Fessler at the time, testified that nothing was said about the assignment of bank stock, and Fessler, as a witness, positively denied ever having had any such security, or any other security. Another witness, named Hannan, testified that Fessler told him that he had received an assignment as collateral security for the note, the equity in some stock, and that he showed him a written assignment, but all he recollected was that it was an assignment to Fessler as collateral security for the endorsement of a note, but was not sure, he was only giving the best of his recollection, and when asked whether the paper was not an assignment of some stock as security for any or all notes that Fessler might endorse, he was not able to say, nor did he recollect whether the paper he saw was signed by Hilbert, or anyone. Bui even if this be true, it is not proof that Fessler signed or endorsed, or intended to endorse this particular note as a note for $3,300, and, in view of the fact that Fessler denies any such assignment, we are not inclined to think that this evidence is sufficient to bring the case within the very strict rule required to be applied in cases
We have examined very carefully all the testimony in the case and fail to find any which sufficiently shows that when the defendant Fessler endorsed this note he intended to endorse a note for $3,300, and there must be some evidence to satisfy us to a reasonable certainty that this was what he intended to do before we can safely say that there was a mutual mistake as to tire amount of the note. .The note itself is presumed to express the contractual intention of the parties at the time it was endorsed; Hilbert says that it does not, while, on the other hand, Fessler is just as positive that it does. And there are no circumstances proven in this case of such a clear and convincing nature as is required to justify a finding that Fessler intended to then endorse a note for $3,300, and, in the absence of such proof, equity ought not to reform a promissory note from $33 to $3,300, by the exercise of its great power to reform instruments, which has been described as “the high remedy of reformation.”
The decree will be reversed.