22 Ky. 311 | Ky. Ct. App. | 1827
delivered the Opinion of the Court.
This writ of error is prosecuted to a decree of the circuit court, which gave relief to the complainant, by rectifying a mistake, committed by the person applied to for the purpose of drawing the writings upon a sale of land, by which the notes for the purchase money, omitted to state they were payable in the paper currency of the State, under an impression by the writer, that as the notes only called for dollars, and not for lawful money, they would conform to the contract and intention of the parties.
The bill charges that the contract was for the sale and purchase of one hundred and nine acres of land, (excepting a burying ground,) for the price of six hundred dollars, payable in the paper of the Bank of the Commonwealth, then greatly depreciated, to nearly two dollars of paper for one of silver; that at the time of the contract, this paper was the common, and indeed, almost the only circulating medium in the State; that Mr. Lerty was called upon to draw the writings, and by mistake, or accident, or not knowing that it was necessary to insert in the notes that they were payable in paper of the Bank of the Commonwealth, he drew them for dollars, omitting to say what kind of money; that the contract was explicitly for the payment in that paper; that the notes were dated all on the 28th of January, 1822, four in number, payable at different periods, amounting together to sixjhundred dollars; that afterwards, in July 1822, the complainant Proctor, paid one hundred dollars in paper, which the defendant then received without difficulty, and promised'to credit the amount on the note then due, which he had not with him, but has credited the amount as of the 16th July, but omitting the year; since which time, the defendant has refused to receive paper, and fraudulently taking advantage of the mistake and error, has obtained judgments at
The answer does not deny that the paper was the common circulating medium of the'country at the date of the contract; omits to respond as to the payment in July 1822, but denies mistake, want of skill in the draftsman, fraud in himself, or that the contract was for payment in Commonwealth’s paper, “or in any thing but current money, or that the contract was for any thing less than six hundred dollars in specie;” the answer does not deny the depreciation of the currency at the time of the contract.
It is supposed that there can be no relief in equity, by parol proof of a mistake, in opposition to the language of the writing and against the positive denial of the answer, and the case of Baugh vs. Ramsey is relied on. That case is misunderstood by the gentlemen of the profession, if they suppose there is any such principle to be extracted from it. That case requires strong and satisfactory proof against the writing and tiie answer; it gives to both clue weight, according to the uniform language of the chancellors upon the subject, and it decided that the proof in that case did not come up to that degree of satisfactory proof which is requisite.
The case of Lyman vs. the United States’ Ins. co. (2 John. ch. cases, p. 632) was decided against the relief sought, for want ofthe requisite evidence of any agreement of the parties different from that contained in the written policy of insurance. Chancellor Kent, in that case, affirms the power of the court to relieve outhe ground of mistake, but denied the relief, because the mistake was not made out in a clear and decided manner, and to the entire satisfaction of the court. But in a previous case of Gillespie and wife vs. Moone, (2 John. ch. cas. p. 593,) after full and able discussion by the bar, chancellor Kent, with his usual ability and research, examines the question upon principle and precedents, and places the power of the court beyond doubt, by reason and precedents in number both ancient and modern. He says, “I have looked into most, if not all of the cases on this branch of equity ju
The cases are very numerous, before, and since 1776, in England, and in the United States, where, upon bills for specific performance, the defendants have been permitted to destroy the equity of the bill by parol proofs, and also where relief has been granted affirmatively, on behalf of complainants upon parol proof, of mistakes in bonds, articles of agreement, policies, mortgages, bargains and sales, deeds and other writings, and where the principle that parol proof was competent to show the mistake , and set up an agreement contrary to the writing, has been admitted, ahhough the relief has been denied, because the parol proof was not sufficiently satisfactory, or the transaction was stale. The cases are arranged under these respective heads by chancellor Kent, in greater number than is altogether allowable 10 this court, under the statute against citation of cases decided in Great Britain since 1775, all of which will be found in the case of Gillespie vs. Moone.
In Bingham vs. Bingham, (1 Vez. senr. case 74 p. 137,) a decree was founded on a plain mistake, although no fraud appeared.
In Joynes vs. Stethan, (3 Atk. case 129 p. 329) lord Hardwicke permitted evidence of a mistake in omitting in the writing a part of the agreement, that the tenant should pay the rent clear of taxes, and upon the parol proof so admitted the bill was dismissed. The chancellor said he was very clear the proof ought to be read.
In Legal vs. Miller, Vern. case, 99, p. 299,) Sir John Strange, master of the rolls, dismissed a bill on parol proof of an agreement different from the written agreement. He declared such evidence was
In Pitcairne vs. Pitcairne, (2 Vez. senr. case 122, p. 376,) parol evidence was admitted to show that although the written agreement was for an annuity of £150, yet the true agreement was for but £100; the relief however was denied, because there was no mistake, but a secret underhand-agreement, to draw in another party, to do more than otherwise he would, was the cause of inserting the £150 instead of the £100, as the annuity. In this is cited the case of—
South Sea Company vs. D. Oliff, where six months were inserted in place of two, the instrument was drawn and executed in a hurry; upon discovery of the mistake, the party injured, brought his hill to rectify the mistake, and have two inserted, according to the true agreement, and lord chancellor King decreed accordingly, upon parol evidence. The court said parol evidence must he admitted to prove the variation of the written, from the true agreement, otherwise “if it could be got in black and white, there would be no relief.”
In Simpson vs. Vaughan, (2 Atk. case 21, p. 32,) Lord Hardwick said there was “a reasonable presumption that this bond was either through fraud, or for want of skill, made a joint, instead of a joint and several bond, for Baker; one of the obligors, who filled it'up, is only a tradesman, and entirely unacquainted with the common form of bonds, where money is lent to two persons; hut I do not think it was a fraud in Baker, but merely a mistake, and this is a head of equity on which the court always relieves.” And accordingly the party was relieved upon the mistake, and placed in the state as he would have been, if the bond had been a joint and several bond.
In Langley vs. Brown (case 162, 2 Atk. p. 203,) Lord Hardwick said, “the third ground of relief is mistakes and misapprehensions in the drawer of deeds contrary to the design of the parties, and to be sure, this is as much a head of relief, as fraud and imposition.” Relief was not granted, however; he could not find sufficient proof.
In Henkle vs. Royal Exchange Company, (1 Vez. senr. case 156, p. 318,) the bill was to rectify a policy of insurance after a loss had actually happened, upon the ground that the written policy had mistaken the intent of the parties to the agreement. Lord Hardwick, in delivering the decree said, “no doubt, but this court has jurisdiction to relieve in respect of a plain mistake in contracts in writing, as well as against frauds in contracts, so that if reduced into writing, contrary to the intent of the parties, on proper proof, that would be rectified.” But in that case he did not relieve for want of the proof sufficient to establish the agreement to have been different from the writing; two witnesses only being examined, and they differing as to the agreement, and the application being in the harshest case that could happen, after the loss had been ascertained, in such, case after actual loss, the chancellor said, there ought to be the strongest proof possible.
In Washburn vs. Merrills, (1 Day’s ca. in error, 139,) the Supreme Court of Connecticut, gave relief to a mortgagor, who had by mistake executed an absolute deed. The mortgagee got into possession, and the bill being brought to rectify the mistake, and to redeem against the mortgagee and against a purchaser under the absolute deed; the answer set up the absolute deed, and relied on the statute of frauds; parol proof of the mistake was offer
In the case of Gillespie vs. Moone, relief was actually given against the written instrument upon parol evidence of the variance of the written instrument from the agreement of the parties; and many more of like kind are cited by the chancellor. So in Breathitt vs. M’Curdy, decided in this court.
It is then to he taken as settled, by the concurring opinions of Hardwick, Thurlow, Strange, Eldon, Kent and other judges, that Mistake is a head of equity jurisdiction, as clearly settled as in cases of fraud and trust, and that parol testimony is admissible to establish the mistake. It has been the constant language of courts of equity, that parties can be relieved in cases of writings founded in mistake, as well as in cases of fraud. It would be a Sreac defect ln the jurisdiction of courts of equity, and in the moral action of their powers, if there was to be no relief because of the mistakes or misapprehensions in the drawer, or of the parties, if there was to be no relief, if an agreement variant from the true one could he got in back and white. The rule at law is, that the writing does, in com-templation of law, contain the true intent of the parties; that the writing furnishes better evidence of the sense and understanding of the parties, than can be supplied by parol. But equity has a broader jurisdiction, and will open the writing to let in an equity founded on facts distinct from, the written agreement, and from its sense and construction. The court however, will always receive the paro] proof without forgetting to what extent the answer of one of the parties admits or denies the intention, and giving due regard to the answer; but wherever the answer is overcome by the parol proofs, and the mind of the court is satisfied as to the mistake in reducing the agreement of the parties into writing so as not to express their true intent and understanding, the court can, and ought to rectify the mistake, and prevent the one party from taking a fraudulent or oppressive advantage of the mistake.
The proof in this case clearly establishes the mistake ■ as charged in the bill. William JB. Lerty, esq. who was called by the parties to draw the writings, and whose general character for truth and veracity, all who speak of him (as well those examined by the defendant, as those on part of the plaintiff,) declare.to be unexceptionable, states that he was informed by the parties, that the land was sold for six hundred dollars, payable in Commonwealth’s paper. He drew the notes divided into different sums, and times of payment, as directed by the parties; and drew also a bond in a penalty conditioned for the conveyance of the tract of land of 102 acres, • (excepting the grave yard;) the notes were executed by Proctor, and the penal bond by Inskoe. He accounts for his omission of the paper of the Bank of the Commonwealth, in drawing the notes, thus; then he drew specie notes, his practice was to insert good and lawful money, because he considered nothing good and lawful money but gold and silver. The paper of the Bank of-the Commonwealth he did not consider good and lawful money. By omitting good and lawful money, and calling for dollars only, he supposed the notes conformed to the contract. When this explanation is connected with the fact asserted and not deneid, that at the time the paper of the Bank of the Commonwealth, w’as the genera] and almost the only circulating medium, it is satisfactory as to the cause of the omission. Mrs. Mary Lerty states that a few days before Inskoe sold the land to Proctor, she was requested by Inskoe to send word to Proctor, that he would let him have the land for six hundred dollars in Commonwealth’s paper, and give him his own time for payment, she did so; and a few days after the sale, she was informed by Inskoe he had sold to Proctor, for six hundred dollars in Commonwealth’s paper. Christopher Disher states, that on the same day that the contract was closed, Inskoe informed the witness, at Inskoe’s house, that he had sold to Proctor for six hundred dollars in Commonwealth’s paper. Notley Proctor states, that in July, 1822, he was present when his brother, Daniel Proctor, paid to the defendant one hundred
To this volume of testimony, given by persons of unimpeached veracity and character, the defendant has opposed the testimony of Win. Owens and Thos. Williams, who state, the land in their judgment, was worth “five or six hundred dollars,” in gold or silver. They, however, state that the land was generally hilly, stoney, fencing out of repair, fields infested with briars and shrubs. Tire witnesses on part of the plaintiff, were near neighbors and intimately acquainted with the tract of land; to their testimony as to value, the preponderance is due, as well from number as from their particular knowledge of the tract, and from the circumstances; as to Mr. Vincent’s statement, that he would have been willing to give six hundred dollars for the land in 1819, as land was then high, it cannot avail; that was three years before the contract; he expressly states he cannot tell the value, for he has been a non-resident ever since the year 1820. Secondly: as to the contract, Daniel M’Grohon states that about Christmas, 1823, complainant and defendant were at his house; he observed, he thought defendant had made a bad sale, “that be knew he had been offered a short time before, $G00 in gold and silver in hand, and was about to take $600 in paper;” complainant replied he was to give $600 in good money; he asked complainant if he had not paid one hundred dollars in paper, he replied he had, but was bound for good money. This witness states, that at Inskoe’s house, he told Inskoe, he had fooled away his land. Why, said Inskoe? Witness said, because he would have to take Commonwealth’s paper; defendant said no, his bargain was for dollars, his notes called for dollars, he looked for good money. This witness seems to have well understood that the contract was for paper, and inskoe began to play upon the word dollars, hut had not then brought his mind .to say the contract was for gold and silver. Aaron Owens states, that in November or December, 1823, he heard Proctor say he was then bound to Inskoe, for five hundred dollars in good money, which he did not think ho could pay in five years. This is Mr. Owen’s second deposition, taken 30th December, 1824. in
The mistake is proved to the satisfaction of a court of conscience, and it is unconsoientious in In-shoe to insist on it, unless there is to be no relief where a contract gets into black and white, howsoever great the mistake in committing it to writing; there should be relief in this case.
Decree affirmed with costs.
