34 S.E.2d 702 | Ga. | 1945
The trial judge did not abuse his discretion in denying an interlocutory injunction.
On the interlocutory hearing, the plaintiff swore by affidavit that prior to the execution of the deed, and during the negotiation of the sale. "the defendant stated that he wanted to reserve the timber, to which statement by the defendant the plaintiff made no objection, but that at no time was there any agreement that the defendant was to have the saw timber," and that the deed was the product of the defendant, having been prepared while the plaintiff was out of the State. Called for cross-examination, the *645 plaintiff testified that "in all conversations he did not buy the timber on the lands in question, and the only difference was the location of the corners or land lines," and "he understood in his negotiations with the defendant that the defendant was to reserve the timber." Affidavits on behalf of the defendant showed the plaintiff's admission after the sale that he had not purchased the timber, but that he stated he was going to hold it under his deed. The defendant swore that the purchase-price of $2500 did not include the timber, and by accident the reservation was left out of the deed, "he trusting Mr. Hill (the plaintiff) that he would not claim the timber." An interlocutory injunction was denied, and the plaintiff excepted to that judgment. Since the demurrer to the answer was not passed upon by the court below, no ruling is here made as to the sufficiency of the answer to set up facts authorizing a reformation of the deed because of a "mutual mistake" in its execution; but the answer, which constitutes a part of the evidence, must be considered along with other evidence in determining whether the court abused its discretion in denying an interlocutory injunction.
The burden of the argument advanced by counsel for the plaintiff in error is that in this case there is an insufficient showing of diligence on the part of the defendant in error; that "a party to a contract who can read must read or show a legal excuse for not doing so, and ordinarily, if fraud is the excuse, there must be such fraud as prevents the party from reading." We recognize the rule that "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,
In the instant case, reformation is not sought on the ground of mistake and fraud. If any reformation is had on the present pleadings, it must be based on mutual mistake. Therefore cases cited by the plaintiff in error, which deal with the proposition that equity will not reform a written contract on account of fraud, if the fraud consists of false representations as to the contents of the instrument on which the complaining party relied when there was no justification for his doing so, are not in point.
The general rule is that there can be no reformation of a written contract except where there is a mutual mistake, or a mistake on the part of one contracting party and fraud on the part of the other. Salvage Sales Co. v. Aarons,
No ruling is necessary as to the propriety of admitting evidence of an oral agreement varying the terms of a written contract without the proper foundation having been laid by proof of a mutual mistake. The exception is to a ruling on an interlocutory-injunction hearing — where the strict rules of evidence are not applicable — and the assignment of error calls for no ruling on the admissibility of evidence.
The court did not abuse its discretion in denying an interlocutory injunction. Compare Georgia Slate Co. v.Davitte,
Judgment affirmed. Bell, C. J., Jenkins, P. J., Duckworth andAtkinson, JJ., concur.