119 Ala. 333 | Ala. | 1898
On the 8th January, 1894, Henry P. Turner, James R. Stephens,- Jr., William Burritt, H. & C. L. Toney, a partnership, and John Hertzler, Jr., the appellant, each owning 49 shares of the stock of the Hagey Hospital Association of Texas, a corporation organized under the laws of that state, agreed with, and obligated, themselves to James R. Stephens, that they would, at any time within three months from that date, sell, transfer and deliver to him, their respective shares of stock in said association, at and for the sum of $25.92 per share, stipulating, that in the event the said James R. Stephens should not avail himself of the
This contract was plain and unambiguous. It was a mere option in said James R. Stephens to buy said stock, from each of the said shareholders, at the price named at any time within three months from its date. He was under no obligation to give notice within the time, whether he would exercise the option or not. If he failed to do so, the contract by its own terms was abrogated. If he exercised the option, and paid the stipulated price, the stock became his. If he made money by purchasing, it belonged to him, and he was at liberty to exercise the option, as to' any one or all the stockholders, at any time he chose to do so, within the three months’ limitation for its exercise.
On the 16th of January, 1894, said Stephens executed the following receipt to the appellant: “Huntsville, Ala., January 16th, 1894. Received of John Hertzler, Jr., (49) forty-nine shares of the capital stock of the Hagey Hospital Association of Texas, to be paid for as per terms of a contract duly signed by said Hertlzer, Jr., dated January the 8th, 1894, or the said forty-nine shares of stock to be returned by me to said Hertzler, within the time specified in said contract. J. R. Stephens. Witness, Erskine Mastín.”
This writing was plainly an exercise of said option by said Stephens to purchase appellant’s said stock on tlxe terxxxs therein specified, viz., that he should pay for it or returxx it to said Hertzler, Jr., within three xxxonths from the 8th day of January, 1894, the date of the contract of option. The option contract was thereby changed between said parties, and by the terxxxs of the last agreexnent, Stephens was to do an affirmative act within the tixxxe specified — either pay the specified anxount of the stock, or return it to Hertzler. He failed to do either. Hertzler sued hixn at'law, and recovered a judgment. He appealed to this court, and the judgment was affirxxxed. — Stephens v. Hertzler, 109 Ala. 423.
Thereupon, Stephens filed the present bill, to enjoin the collection of said judgment and to reform said contract of the 16th January, 1894, alleging in substance, that at the solicitation and request of said
The bill was demurred to on various grounds, and a motion Avas made to dismiss for Avant of equity. The court sustained the demurrer, and granted the motion to dismiss. On appeal, Ave reversed that decree, and rendered one, overruling the demurrer and motion to dismiss, and alloAved defendant thirty days in which to answer. — Stephens v. Hertzler, 114 Ala. 563.
Hertzler answered, making positive denial of the material allegations of the bill. He denied that there Avas any contract other than evidenced by the writings.
The chancellor, on final hearing, granted the relief prayed for, and this decree is assigned as error. It is altogether a question of fact, therefore, as governed by the rules of laAv in such cases, whether the decree of the court shall be affirmed or not.
It is important for the proper determination of the cause, to make reference to the Avell established principles governing the reformation of contracts on account of alleged mistakes in their execution.
In Guilmartin v. Urquhart, 82 Ala. 571, the court said: “To authorize the reformation of a contract ivliich has been reduced to writing and signed, the proof must be clear, exact and satisfactory — first, that the writing does not express the intention of the parties — that on which their two minds had agreed; and, second, what it was the parties intended the writing should express.”
The burden in such cases is always on the complainant to sIioav by evidence that is clear, exact, convincing and satisfactory, that the written contract does not express the true agreement between the parties. — Moore v. Tate, 114 Ala. 582. If the proof “is uncertain in any material respect, it will be held insufficient; and while the courts may feel a great wrong has been done, they can grant no relief by reason of uncertainty.” — Alexander v. Caldwell, 55 Ala. 522; Berry v. Sowell, 72 Ala. 17.
“The authorities,” says Mr. Pomeroy, “all require that the parol eAddence of the mistake, and of the alleged modification, must be most clear and convincing, * * * or else the mistake must be admitted by the opposite party; the resulting proof must be established beyond a reasonable doubt. Courts of equity do not grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of the evidence, but only upon a certainty of the error.” — 2 Pom. Eq. Juris. §859.
“Until beyond reasonable controversy, the mistake is made to appear, the writing must remain the sole expositor of the intent and agreement of the parties.” — Hinton v. Insurance Co., 63 Ala. 488; Smith v. Allen, 102 Ala. 406.
The complainant examined also, Harris and Charles Toney and Henry P. Turner, parties in Alabama, who, besides Hertzler, signed the option contract, and to whom complainant, afterwards, gave receipts, the one to the Toneys, on the 18 th January, 1894, and the other to Turner, on the 22d January, 1894, in each of which it was specified, that the stock was to be taken at the price named in the option contract signed by them, or said stock returned in the time specified. The proof showed that Turner’s stock was returned to him on the 12th May, 1894, and the Toneys’ at some time after the expiration of the 90 days mentioned in the option. As to these parties, proof was admitted, whether properly or not, we need not decide, that as to them, they understood the transaction to be as the complainant construed it. The defendant’s receipt for his stock, however, from Stephens, was given at a different time, and this transaction between Stephens and the other parties, if admissible for any purpose against Hertzler, was not necessarily the same transaction as the one with Hertzler, unless it were shown, they all agreed beforehand, that they would deliver their stock to Stephens, for the same purposes
If we accord to complainant, as we do, an honest intention in executing said paper, as he alleges it in his bill, and to his proof, all he claims for it, yet on the other hand, we are confronted with a denial in defendant’s answer of the alleged mistake and by his clear and unmistakable testimony, that no such mistake as that set up was made in the execution of said contract, but that the real and only understanding between him and the complainant was that imported on the face of said papers. This leaves us— conceding to the respective parties equal honesty of intention and purpose — without that clear, exact, convincing and satisfactory evidence upon which the relief sought may he properly granted. This conclusion is inevitable, if we do not discard the defendant’s evidence, and adopt that of complainant as true, which we are not permitted to do. We prefer to accord equal veracity to each of the parties, and believe there existed an honest difference of understanding between them, which is fatal to the bill.
The complainant and defendant differ in their testimony as to some details respecting the time and place of the execution of the option contract, and in some other particulars not of controlling importance, all reconcilable on the score of infirmity of memory on the part of one or both of them, and which it would serve no good purpose to discuss at length, as counsel have done.
A decree will be here'rendered, dissolving the injunction granted, reversing the cause and dismissing the bill.
Reversed and rendered.