Horne v. J. C. Turner Cypress Lumber Co., 55 Fla. 690

Horne v. J. C. Turner Cypress Lumber Co.

55 Fla. 690 | Fla. | 1908

Shackleford, C. J.,

(after stating the facts.)—It is settled law in this court that -in equity, as well as at law, a pleading is to be most strictly construed again-st the pleader thereof, -and in passing upon a demurrer to a bill every presumption is against the bill. It is incumbent upon a complainant to allege in his bill every fact, clearly and definitely, that is necessary to entitle him to relief; and if he omits essential facts therefrom, or states such facts therein, as show that he is not entitled to relief in -a court of equity, he must suffer the consequences of his so doing. Durham v. Edwards, 50 Fla. 495, 38 South. Rep. 926, and -authorities there cited; Barco v. *698Doyle, 50 Fla. 488, 39 South. Rep. 103; Godwin v. Phifer, 51 Fla. 441, 41 South. Rep. 597; Weeks v. J. C. Turner Lumber Co., 53 Fla. 793, 44 South. Rep. 173; McClinton v. Chapin, 54 Fla. 510, 45 South. Rep. 35. This principle has also been held to be especially applicable to bills seeking an injunction. Godwin v. Phifer, supra; Hall v. Horne, 52 Fla. 510, 42 South. Rep. 383; Baker v. McKinney, 54 Fla. 495, 44 South. Rep. 944. As we shall also see, it necessarily follows from former decisions of this court that this principle is also peculiarly applicable to .bills seeking the reformation of a deed or other written instrument. It has -been uniformly held by this court that, “while equity will reform a written instrument when by a mistake it does not contain the true agreement of the parties, yet it will only do so when the 'mistake is plain and the proof full and satisfactory. The writing should be deemed to be the sole expositor of the intent of the parties until the contrary is established beyond a reasonable doubt.” Jacobs v. Parodi, 50 Fla. 541, 39 South. Rep. 833, and authorities there cited; Griffin v. Societe Anonyme La Floridienne J. Buttgenbach & Co., 53 Fla. 801, 44 South. Rep. 342. The following authorities will also prove instructive upon this point: Jackson v. Magbee, 21 Fla. 622; Franklin v. Jones, 22 Fla. 526. It is a further established rule that the allegata and probata must reciprocally meet and correspond. Lyle v. Winn, 45 Fla. 419, 34 South. Rep. 158, and authorities there cited; Pinney v. Pinney, 46 Fla. 559, 36 South. Rep. 95, and authorities cited; Atlantic Coast Line R. Co. v. Crosby, 53 Fla. 400, 43 South. Rep. 318. In fine, the issues are made by the pleading's and the proof must be confined thereto. If the “proof must be full and satisfactory” in order to warrant a court of equity in decreeing the reformation of a written instrument, and such proof must correspond to and with the *699allegations upon which such reformation is sought, it is an obvious corollary that such allegations must likewise be “full and satisfactory.” Citizens’ National Bank v. Judy, 146 Ind. 322, 43 N. E. Rep. 259, will also be found to be quite an instructive case, containing full citation of authorities and cop-io-us extracts therefrom. Among other things said therein, is, “the rule is that, in an action to reform a written instrument, the plaintiff must set forth the terms of the original agreement, and also the agreement as reduced to writing, and point out with clearness wherein there was a mistakealso that “courts of equity do not rectify contracts. They may and do rectify instruments ■purporting to have been -made in pursuance of the terms of contracts.” We would also refer to 6 Pomeroy’s Equity Jurisprudence; ’sections 675 to- 683, and the authorities cited in -the notes.

As has been well said: -“To reform an instrumepi for a mistake in writing, it must be shown that the reform sought is according to the agreement of both parties at the time the instrument was written 'and the mistake made. When an instrument is written as one party understands it, and not -as the -other party understands it, there is no ground for reform-. A reformation cannot make a new instrument which the parties never agreed to make.” Welshbillig v. Dienhart, 65 Ind. 94, text 99. In other words, “the reformation is- not to make a new agreement between the parties, but to establish and perpetuate the old one.” Maupin’s Marketable Title to Real Estate, (2nd e-d.) 556. It is elementary that there must be a meeting of two- minds in one and the same intention in order that there -m-a-y be a contract. Etheredge v. Barkley, 25 Fla. 814, 6 South. Rep. 861. It is also true that a -contract under seal cannot be modified before breach by a p-aro-1 executory contract. Tischler v. Kurtz, 35 Fla. 323, 17 South. Rep. 661. It is further *700true that “when parties deliberately put their engagement in writing in such terms as import a legal obligation, without any uncertainty as to- the object or extent of the engagement, it is, as between them-, conclusively presumed that the whole engagement -and the extent and manner of the undertaking is contained in the writing. * * * No other language is admissible to show what they meant or intended, and for the simple reason that each of them -has made that to be found in the instrument the agreed test of his meaning and intention.” Perry v. Woodberry, 26 Fla. 84, text 90, 7 South. Rep. 483, text 485. Also, as was said in Pensacola Gas Co. v. Lotz, 23 Fla. 368, text 378, 2 South. Rep. 609, text 611, “the first point in construing a contract is to. ascertain what was the meaning and understanding of the parties, as shown by -the language used, applied to the subject matter.” 1

Let us test the bill by the application of the foregoing principles.

The instrument of which the reformation is sought is a deed poll executed by Robert J. Knight, one of the complainants, joined by his wife, on the 30th day of October, 1900, to The J. C. Turner Cypress Lumber Company, one of the defendants. We start out with the assumption that the language used therein represented and set forth the meaning and intention of both the grantor and the grantee. The particular clause therein, reformation of which is sought, is plain, simple and certain : “The grantor specially reserves the right to box, cut and work for tuipentine purposes, all the pine trees growing upon the premises above described, and each and every part thereof, and a full turpentine privilege, including the right of entry and passage over and upon the above described lands for the period of four years, it being -specially agreed by the grantee named herein *701that no other person or corporation shall have the said ■ turpentine privilege or the right of passage over and upon any part of the above described, lands during the said four years, for turpentine and mill purposes, other than the grantor named in this conveyance.” It cannot be successfully contended that any other legitimate construction can be placed upon this, language than that the grantors reserved the rights therein specified for a period1 of four years from the date of the execution, of the deed. Indeed, it is not urged otherwise by the appellants, but they contend that the scrivener made a mistake in the drafting thereof, and “that the.said clause in the said deed • should have been in the nature of an absolute exception and not a mere reservation of the turpentine privileges to 'the said Knight, and should have set forth the full contract agreed upon and understood between the said Knight and the said J. C. Turner Cypress Lumber Company, to the effect that the said Knight and his assigns should have the privilege of beginning the cutting of boxes at any time when it was practicable and convenient to.the said Knight to do so, and that they should have a full four year period to enjoy the said privilege, after the boxes were cut in the pine trees growing on said lands.” The special prayer, which we have 'copied in full in the statement, is strictly in accordance with the foregoing allegation.

It is significant that this suit was not instituted until the 19th day of March, 1906, more than five years after the execution of the deed, and also that there is no allegation in the bill as to just what the real contract was, or the precise terms thereof, which it is contended was made and agreed upon. No contract is set out in the bill which it is sought to have substituted in lieu of the one which appears in the deed. It is also obvious that if the court should grant the specific relief prayed for, it would *702'thereby substitute in the place of. the plain and clear contract in the deed one which would be vague, indefinite and uncertain. This would be subversive of the principle ’that a contract should be clear, definite and certain. See i Chitty’s Contracts, (11 Am. Ed.) 92, Clark’s Con tracts, 59 and 63.

It is clear that the bill signally fails to meet the requirements laid down by the authorities which we Jiave cited. The demurrer to the bill w«as properly sustained.

Many interesting questions are presented, which have been ably discussed by the respective counsel both in their briefs and oral arguments, and numerous authorities are cited to us, but we deem it unnecessary to go into them. What we have said sufficiently disposes of the case.

Finding no error in the decree appealed from, it must be affirmed, and it is so ordered, at the cost of the appellants,

Cockrell -and Whitfield, JJ., concur;

Taylor, Hocker, and Parkhill, JJ., concur in the opinion.