15 Or. 363 | Or. | 1887
This appeal comes here from a decree of the Circuit Court for the county of Multnomah. The appellant commenced a suit in that court against the respondent for an accounting, after a dissolution of copartnership theretofore existing between said parties.
The contract of copartnership is alleged in the complaint to have been under and in pursuance of certain written articles signed by them, and of which the following is a copy:—
“This agreement made this first day of March, 1886, between John Foster and P. Schmeer, both of Multnomah County, Oregon, witnesseth, that the said Foster and Schmeer have hereby agree to carry on and conduct, jointly, a milk or dairy business, in said county, under the following terms and conditions, to wit: The said Schmeer shall supply, at his own cost and expense, one half the number of all the cows necessary for said business; also pay for one half of all the feed that may have to be bought; and for all articles, implements, or supplies required for carrying on the said business. The proceeds of said business shnll be divided equally between the said Foster and Schmeer, at such times and in such a manner' as to them seems proper. This agreement to be and remain in force for the term of one year, from the first day of March, 1886.
“It is further mutually agreed that upon the termination of this agreement, the said Foster may repurchase the six cows he*365 sold to said Schmeer at the same price he received from said Schmeer, to wit, the sum of $180.
“Witness our hands and seals this seventh day of August, 1886.
“ Peter Schmeer. [seal.]
“John Foster. [seal.]
“Witness: A. M. Stansberry.”
It is further alleged in the complaint that by virtue of said agreement the parties entered upon said business therein referred to; that appellant complied with all the conditions of the agreement upon his part; that he had advanced considerable sums of money and furnished feed on account of the copartnership business largely in excess of his share as a partner; that said advances.amounted to over $300 more than his proportion, and that the respondent had refused to enter into any accounting or * repay his shares of the advances.
The respondent filed an answer to the complaint, denying that he entered into any copartnership with appellant under said agreement, or any agreement except an agreement in the dairy and farm business, and denied all the other material allegations of the complaint. And for further answer and counterclaim alleged that the said agreement was erroneous in that, by mutual mistake of the parties thereto, they omitted to state, as was their intention, that the partnership was formed for the purpose of carrying on a farming business as well as a milk business; that the respondent was to put in the trade and good-will of a milk business, then possessed by him, together with his knowledge of said business, also the use of three horses, one-half interest in a milk' wagon, and in fifty milk cans; that appellant was to furnish, as his share of the capital stock, the use of one half of all the cows needed in said business, the use of his farm on Columbia Slough, the use of three horses, one-half interest in a milk wagon, and fifty milk cans, and pay for one half of all feed and one half of all articles, implements, and supplies that would have to be bought for carrying on said milk and farming business; and that in order to make said agreement conform to the actual intentions of the parties, it was necessary that the same
No reply to the answer was filed, but a stipulation was entered into by and between their attorneys in their behalf to stand in the place of such reply, and of which the following is a copy: “ (1) Admitting that at the expiration of any partnership that existed between the parties, the plaintiff purchased of defendant six cows for the sum of $180, and has paid no part of the said sum. (2) Admitting that plaintiff has in his possession one mower, the property of plaintiff and defendant, of the value of $60. (3) Admitting that plaintiff has possession of a well that cost, with the appliances, $80, one half of which sum was paid by each party. (4) Denying specifically each and every other allegation contained in the answer of defendant herein.”
The case was referred to a referee to take the testimony and report it to the court, together with his findings of fact and conclusions of law thereon.
The main controversy in the testimony was, whether the use of the farm was to be included in the partnership business. The appellant seemed inclined to concede that the use of a part of the
The referee found that the contract set out in the complaint was entered into by mutual mistake of the parties thereto, and that it was erroneous in that it did not provide, as was the intention of the parties, that the partnership was formed for the purpose of carrying on a farming business, as well as a milk business; that the appellant was to put in his share of the capital stock, among other things, the use of his said farm. He also found that the respondent, since the first day of January, 1887, had collected of the moneys due said firm the sum of $258.55, and paid out on account thereof $156.70, leaving a balance in his hands due the firm of $101.85. That the appellant purchased
The price of the cows.$180 00
.One half of the money for the potatoes. 61 58
One half of the expense of the well........... 40 00
One half value of the mower. 30 00
Amounting to.$311 58
Andcreditinghimwithonehalfthe$101.85eollected.viz. 50 92
Leaving.$260 66
There are two questions in the case to be considered: First, had the respondent a legal right, under the allegations and proofs, to have the contract set out in the complaint reformed; and second, if reformed, what changes was the respondent entitled to have made therein?
Pleading a mistake in contract. The pleader did not, as I consider, properly allege the facts so as to entitle a party to have, in a strict sense, the contract reformed. He should have alleged more than that it was erroneous in certain particulars, and for what purpose the partnership was formed. He would ordinarily have to set out the terms of the contract as the parties made it; what they each undertook and agreed to do; and show why its terms happened to be left out when it was attempted to be reduced to writing, or how terms not agreed upon came to be inserted.
This case stands, however, upon somewhat different principles. The relief sought here was to supply what the parties through inadvertence and mistake had omitted.
The parties having deliberately signed an instrument in writing, setting forth what they have agreed upon, cannot, however, expect a court to find that their agreement was different from what they have so declared it to be, without clear, cogent proof that such is the fact, and a reasonable explanation as to how they failed in not having the writing express the true agreement. If this case depended upon the oral proofs alone, I should be of the opinion that the respondent had not shown himself entitled to have the written agreement reformed. But an inspection of the agreement shows it to be incomplete. It does not show what the appellant was to do in carrying on the partnership business, or that he was to do anything except what might be inferred therefrom; and the circumstances under which the parties were situated, and their mode of dealing, afford strong proof that the farm referred to was to be used as an incident of the business they engaged in. I do not think that the evidence in the case warrants the court in finding that the parties agreed to carry on the farming business; their business was, I am satisfied, confined to the milk or dairy business; but that they were to have the benefit of the appellant’s farm, in order to carry on the milk or dairy business, is very evident. I have no doubt but that was the understanding between them; they were to use the barn, the pasture land, the plow land for grain, and the meadows. The respondent was to occupy a part of the house, have the benefit of the fruit and garden beyond question; all their acts indicate that. The cows were kept there; the well was dug to supply water required in carrying on the business; the meadows were sown with plaster; a mower was procured and the plow land
I think the decree upon the accounting should be changed by adding to the appellant’s credit $12.50, on account of the mare referred to, and by discharging the item of $61.58 on account of the potatoes; I think the potatoes belonged to the general farming business, and were not included in the dairy matter. This will reduce the amount due from appellant to $186.58, instead of $260.66. The decree appealed from will therefore be modified in that particular; in all other respects will be affirmed. Neither party is entitled to cost of appeal, but each to pay one half of the clerk’s fees of this court.