156 Wis. 90 | Wis. | 1914
The following opinion was filed December 9, 1913:
One of the principal contentions of the defendant is that plaintiff had an adequate remedy at law, because the ambiguity in the contract as to what plans were therein referred to could be explained by parol evidence. It' is needless to inquire into the merits of this contention, for the objection that plaintiff had an adequate remedy at law, not having been taken either by demurrer or answer, was waived. Meyer v. Garthwaite, 92 Wis. 571, 66 N. W. 704; Bigelow v. Washburn, 98 Wis. 553, 74 N. W. 362; Pippin v. Richards, 146 Wis. 69, 130 N. W. 872.
In his written opinion the trial judge says, in effect, that under the presumptions that arise and by a slight preponderance of the evidence plaintiff is entitled to a reformation of the contract. Were the evidence no stronger than this in plaintiff’s favor, reformation would have to be denied, for it is settled law in this state that reformation of a written contract on the ground of mutual mistake can be had only upon clear and convincing evidence thereof. Harter v. Christoph, 32 Wis. 245; Blake O. H. Co. v. Home Ins. Co. 73 Wis. 667, 41 N. W. 968; Kruse v. Koelzer, 124 Wis. 536, 102 N. W. 1072. After a careful examination of the evidence we are satisfied that it meets the legal call, and the trial judge’s characterization of it as only slightly preponderating becomes immaterial. If the judgment is in fact correct, it must' be affirmed though arrived at on the part of the trial
Tbe trial court found as a conclusion of law that plaintiff was guilty of laches in failing to examine the contract and to detect tbe mistake. No finding of fact' to that effect is made, and we think none would be supported by the evidence. The contract was entered into about' tbe 26th of March, 1910, but it was not until July, 1911, that plaintiff received a bill from defendant showing that extra charges were claimed. Then efforts at settlement were made, which occupied some time, and finally defendant brought action in tbe civil court to recover tbe balance claimed due him. That action was appealed to tbe circuit court, and from it to this court (see 151 Wis. 492, 139 N. W. 443), and remanded for further proceedings. This action was begun in March, 1913. No mere inspection of the contract would show what plans were referred to, and it was not until plaintiff was apprised by defendant’s claim that plans with tbe boiler bouse inside was what tbe contract called for, that it bad notice of tbe mutual mistake. After that time it did not delay unreasonably in seeking reformation, in view of tbe effort at settlement and tbe pendency of tbe action in tbe civil court.
Since no equitable jurisdiction is conferred upon tbe civil court of Milwaukee county, tbe action to reform tbe contract was properly brought in the circuit court. Without reformation plaintiff could not, in an action at law, avail itself of tbe
By the Oourt. — Judgment affirmed.
A motion for a rehearing was denied, with $25 costs, on February 24, 1914.
