109 Kan. 710 | Kan. | 1921
The opinion of the court was delivered by
May C. Haymaker, a widow, was the owner of a quarter section of farm land, subject to a mortgage of $2,800. She had a talk with Charles E. Alford, who had been occupy
“Where the party’s error as to the contents of his signed document is known to the second party, the first party may, of course, by the general principle {ante, § 2413), insist upon the terms as supposed by him, because these are identical with those which he appeared to the second party to be intending to utter. In other words, the actual and therefore the reasonable consequence of his volition to express himself in certain*712 terms was precisely what the second party understood to be that expression. 1. The ordinary instance is that of fraudulent misrepresentations of the document’s terms by'the second party; ... 2. Where the first party's error is merely known to the second party, without fraudulent means by the latter, the result is still the same, for the latter cannot claim that the first party’s expressed words were reasonably so accepted by him; the only difference ought to be that in this case the first party should be satisfied with having the document reformed, while in the case of fraud he ought to be entitled to repudiate the entire transaction, by way of penalty upon the trickster. 3. Where the first party’s error was not Icnoivn to the second party, but was induced by the latter’s own corn-duct, here also the first party may not be bound; for in such case it may well be that the terms actually expressed did not come to be expressed as the natural consequence of the first party’s volition, but were due rather to the second party’s own conduct. In that event the latter is not entitled to charge the former with them; . . .” (4 Wigmore on Evidence, § 2416.)
Of one of tbe situations referred to this court has said:
“Furthermore, if indeed the forty acres was to be reserved for the full duration of the lease, and the defendant noticed the mistake of the scrivener at the time the lease was executed, and if he purposely or thoughtlessly kept silent about it, the want of mutuality in the matter of the mistake would not stay the hand of a court of equity to correct the writing, as the attitude of defendant in such case would be treated as a constructive fraud on his part.” (Atkinson v. Darling, 107 Kan. 229, 231, 191 Pac. 486.)
Likewise the term constructive fraud seems appropriate where the mistake of one of the parties is brought about by the conduct of the other, where a deliberate fraudulent intent is not estabh'shed. The phrase to be used in describing the conditions that warrant rescission on account of the mistake of one party known to or induced by the other is not of vital importance.
There was evidence tending to show these facts: In the original talk between Mrs. Haymaker and Alford it was agreed that she was to receive $6,500. The contract was signed while she was the sole nurse in charge of a patient who was seriously ill, requiring her attendance at the bedside practically all the time. She was called from this service to sign the contract, which the defendants told her conformed to the oral agreement. She signed it in that belief without reading it, having confidence in both defendants, Alford being an old acquaintance and personal friend. She had had but little business
The written contract was supposed to have been drawn and executed in duplicate. The two copies, however, were not identical in terms. They were made by Clark, who filled in the blanks in typewritten forms which he carried with him. In these forms the recital of the agreement to sell, for an amount to be named, real estate to be described, was followed by the words: “First party agrees to execute warranty deed to the above premises free and clear of all incumbrances whatsoever.” The blank for the agreed price in dollars was filled in in both copies with the figures 6,500, and in each the land was properly described. In the copy left with the plaintiff, however, but not in the other one, the words above quoted were followed by this insertion: “Except mortgage in the sum of $2,800, and interest from March 1, 1919.” (The court found that this part of the written contract left with the plaintiff stated her understanding as to the consideration, while the corresponding part of the other copy stated the understanding of the defendants in that regard.) A subsequent clause in both copies was filled in so as to read: “Payments are to be made as follows: $100 cash in hand which is hereby acknowledged by first party, and assume present-mortgage of $2,800 and interest at 6% from March 1st, 1919, and to pay the balance in cash of $3,600 on or before 90 days, making a total of $6,500.”
The court’s findings that the first part of the copy of the written contract left with the plaintiff stated her understanding as to the consideration, while the corresponding part of the other copy stated the defendants’ understanding in that regard, are interpreted by the defendants as referring to the understanding of the respective parties concerning the effect of the oral agreement. From this the defendants argue that as they were found to have understood the effect of the writing to be the same as that of the oral agreement they were acquitted of bad faith or any attempt to deceive the plaintiff or take advantage of her. We interpret the findings referred to as meaning that the first part of the plaintiff’s copy stated her understanding of the effect of the written contract and the corresponding part of the other copy stated the defendants’ understanding thereof, and under this interpretation the argument fails.
Alford testified that in the first talk with the plaintiff she suggested to him the price of $42.50 an acre. The court obviously discredited this testimony outright, for a price named on that basis cut off the opportunity for a misunderstanding, growing out of the existence of the mortgage.
Another finding read:
“That the defendants told the plaintiff that the written contracts dated June-7th, were the same as oral agreement of June 1st, which was not true, because of the difference in the written contracts it could not be true, and neither of said contracts were as the plaintiff understood them to be.”
The defendants interpret this as meaning that the only reason the court believed the defendants to have spoken falsely when they said the written contracts were the same as the oral agreement was that such statement could not have been true inasmuch as the two copies of the written contract differed. The defendants argue that the court’s conclusion was necessarily unsound because the two copies of the written contract in spite of verbal differences were of the same legal effect.
Another finding read:
“The plaintiff understood by the oral contract that she was to receive $6,500.00 for her property and defendant to assume the mortgage of $2,-800.00, and never intended to sell her farm to the defendant for $6,500.00 and pay the mortgage of $2,800.00 out of that, while defendant claims that he understood he was to get the farm for the total sum of $6,500.00, as provided for in his written contract.”
The defendants interpret this as deciding that Alford understood the oral agreement to provide for the payment of but $3,700 in addition to assuming the mortgage. This interpretation fails to take account of the language used by the court, which is that the plaintiff understood by the oral contract that she was to receive $6,500, while the defendant (Alford) “claims” that he understood she was to get but $3,700.
“These written contracts above referred to are so different in their terms regarding the consideration that in fact and in equity the minds of the .parties to this action never came together. They really never agreed to the same thing, and no enforcing contract was made between them for the sale of the land. Their minds never met on the amount of consideration.”
The judgment is affirmed.