Green v. Johnson
153 Ga. 738
Ga.
1922
Check Treatment
Hines, J.

(After stating the foregoing facts.)

1. The court did not err in overruling the formal, grounds of the motion for new trial, as there was evidence to support the verdict, and the same is not against the law. This leaves for our consideration only the grounds of the defendant’s amendments to his motion for new trial.

2. The grounds of the defendant’s first amendment to his motion for new trial complain that the verdict is contrary to four instructions given by the court to the jury. These grounds are equivalent to an objection that the verdict is contrary to law, and are embraced in that single objection; for if the charge be not law, *748the verdict will be upheld, though against the illegal charge. Hughes v. Hughes, 72 Ga. 173; Augusta &c. R. Co. v. Randall, 79 Ga. 304 (10) (4 S. E. 674); Brannan v. McWilliams, 146 Ga. 528 (4) (91 S. E. 772); Mitchell v. Mitchell, 151 Ga. 466 (107 S. E. 44.)

•3. It is urged that the plaintiff could read, that he did not read the sale agreement between him and the defendant, that if he had done so he would have discovered the alleged mistake in this instrument, that his failure to read this document and inform himself of its contents was gross negligence on his part, and that for this reason a court of equity will close its doors against him, and decline to reform this instrument so as to make it speak the true contract between the parties, although the scrivener made a mistake in preparing it, and both parties executed it under a mutual mistake. This court has held that where two contracting parties deal with each other at arm’s length and on equal terms, and where ther'e is no such confidential relation between them as to justify special confidence reposed by one in the other, a written instrument entered into between them can not be set aside upon the ground that the party seeking to be relieved was induced to enter in and sign the instrument in consequence of fraudulent representations as to its contents upon the part of the adverse party, when it appears that the party signing could read, that there was nothing to prevent him from reading the instrument, but that he did not do so, that there was no sufficient excuse for his failing to do so, bxrt he signed after he had full opportunity to inform himself- as to the terms of the instrument by reading it, but negligently omitted to read the same, when he could thus have informed himself of its contents. Boslwiclc v. Duncan, 60 Ga. 383; Boynton v. McDaniel, 97 Ga. 400 (23 S. E. 824); Chicago Building &c. Co. v. Summerour, 101 Ga. 820 (29 S. E. 291); Jossey v. Ga. So. & Fla. Ry. Co., 109 Ga. 439 (34 S. E. 664); Walton Guano Co. v. Copeland, 112 Ga. 319 (37 S. E. 411, 52 L. E. A. 268); Georgia Medicine Co. v. Hyman, 117 Ga. 851 (45 S. E. 238); Harrison v. Wilson Lumber Co., 119 Ga. 6 (2) (45 S. E. 730); Stoddard Mfg. Co. v. Adams, 122 Ga. 802 (50 S. E. 915); Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (2) (56 S. E. 1030).

This doctrine has likewise been applied by this court to actions for reformation of instruments. On this subject this court has *749said: “ Equity will not reform a written contract because of mistake as to the contents of the writing on the part of the. complaining party (who was able to read), and fraud of the other party which consists only in making false representations as to such contents, on which the complaining party relied as true because of confidence in the party making them; no fiduciary or confidential relation existing between the parties, and no sufficient excuse appearing why the complaining party did not read the contract.” Weaver v. Roberson, 134 Ga. 149 (67 S. E. 662). The above doctrine does not apply if the party seeking relief shows some good excuse for not reading the instrument. Angier v. Brewster, 69 Ga. 362; Chapman v. Atlanta Guano Co., 91 Ga. 821 (18 S. E. 41); Wood v. Cincinnati Safe Co., 96 Ga. 120 (22 S. E. 909); McBride v. Macon Telegraph Co., 102 Ga. 422 (30 S. E. 999); Gore v. Malsby, 110 Ga. 893 (36 S. E. 315).

We do not think that this principle should be extended to cases in which it is sought to reform written instruments on the ground of mutual mistake of fact. It has been proclaimed and applied by this court only in cases where parties have sought to be relieved from their contracts, or have undertaken to have instruments reformed, on account of fraud perpetrated by one of the parties on the other. In Baker v. Patton, 144 Ga. 502 (87 S. E. 659), which was an action for reformation, and in which this doctrine was applied, this distinction was drawn; and Presiding Justice Beck said: “It is unnecessary to point out that petitioner does not rely upon a mutual mistake of fact to have the reformation of the writing which is sought.”

In all cases where the form of the conveyance or instrument is, by mutual mistake, contrary to the intention of the parties in their contract, equity will interfere to make it conform thereto. Civil Code, § 4567; Rogers v. Atkinson, 1 Ga. 12; Wyche v. Greene, 16 Ga. 49; Lucas v. Lucas, SO Ga. 191 (76 Am. D. 642); Kelly v. Hamilton, 135 Ga. 505. (69 S. E. 724); Fambrough v. DeVane, 138 Ga. 47 (74 S. E. 762); Kight v. Gaskin, 139 Ga. 379 (77 S. E. 390); Mason v. Cobb, 148 Ga. 469 (96 S. E. 1042). “ In every case under this head of the law, the only inquiry is, does the instrument contain what the parties intended it should and understood that it did? Is it their agreement? If not, then it may be reformed by aliunde proof, so as to make it the evidence of what *750was the true bargain between the parties. And it is wholly immaterial from what cause the defective execution of the intent of the parties originated.” Wyche v. Greene, supra. In such cases the negligence of the party complaining will not defeat his right to reformation, if the other party has not been prejudiced thereby. The Civil Code declares: “ The negligence of the complaining party, preventing relief in equity, is that want of reasonable prudence the absence of which would be a violation of legal duty. Relief may be granted even in cases of negligence by the complainant, if it appears that the other party has not been prejudiced thereby§ 4571. In the case at bar the defendant will not be prejudiced by the reformation of this instrument so as to make it speak the true contract between him and the plaintiff. If he gets what he bought, then he can not be hurt by reforming the instrument so as to keep him from getting what he did not buy.

It is true equity will not reform a written contract unless the mistake is shown to be a mistake of both parties. The mistake must be mutual. Civil Code, § 4579; Quiggle v. Vining, 125 Ga. 98 (54 S. E. 74). There is evidence from which the jury could well have inferred that the sale agreement between the plaintiff and the defendant, by a mutual mistake, did not speak the true contract between them; and that it was an afterthought of the defendant to claim the south half of the lot in question. We do not think that the verdict of the jury is contrary to the true law of the case; and we can not set it aside on the ground that it is contrary to law.

4. -In the first ground of his last amendment to his motion for new trial the defendant alleges that the court erred in permitting the plaintiff to testify that he “ gave the Stillwell Realty Company written authority to sell that one half.” The ground of objection was that the writing given by the plaintiff to the real-estate broker for the sale of his property was the best evidence of such authority. This witness was not permitted to state the contents of this instrument. He merely stated that he had given written authority to the real-estate broker to sell his property. The plaintiff did not propose to go, and did not go, into the contents of this writing, but merely proposed to prove the fact that such writing had been given. The court did not err in permitting the plaintiff to so testify. Sasser v. Sasser, 73 Ga. 275 (5); Henderson v. Central *751Railroad, 73 Ga. 718 (2); Central Railroad v. Wolff, 74 Ga. 664 (2); Kelly v. Kauffman Milling Co., 92 Ga. 105 (18 S. E. 363); Fisher v. Jones Co., 93 Ga. 717 (21 S. E. 152); Merchants National Bank v. Vandiver, 104 Ga. 165 (30 S. E. 650).

5. In the second ground of this amendment it is alleged that the court erred in allowing the plaintiff to testify as follows: “ I only intended to convey the northern half of lot 133 Johnston ward, and did not intend to convey the whole lot, because it was cut in half when I built on the northern half; after dividing it I built two houses there, 197, 196, and 194 is the number of the house in the lane, and 797 is the front number on Wolff street. I sold two houses to Clark & Clark.” The objection urged was .that what the witness intended to convey was not competent evidence; and that the best evidence of what the intention was is the actual written agreement for conveyance. This objection is without merit. Resort to parol evidence is necessary to reform an instrument. Without parol evidence there can be no reformation. A written instrument is evidence of what the parties intended to do; but when a party seeks reformation of an instrument, the instrument is not the best evidence in such controversy. The very purpose of resorting to parol evidence is to contradict the instrument. So the Code provides for resort to parol evidence to prove a mistake in a deed or any other written instrument. Civil Code, § 4572.

This disposes of the alleged errors of which the plaintiff in error complains. We do not think that the court erred in overruling the defendant’s motion for new trial.

Judgment on the main hill of exceptions affirmed; cross-hill of exceptions dismissed.

All the Justices concur.