72 A.D. 567 | N.Y. App. Div. | 1902
Jenks, J.:
The court having found that the scrivener in reducing the contract to writing wrote a description which embraced land not within the contract, and that the contract as written was thereupon executed by the parties in ignorance, adjudged reformation for mutual mistake.
The learned counsel for the appellants seems to insist that the evidence which justifies such relief must be beyond a reasonable doubt, inasmuch as he quotes from the opinion in Coast v. McCaffery (46 App. Div. 436) : “ Courts are chary in reforming written contracts. The doctrine is thus stated in Pomeroy’s Equity Jurisprudence (Vol. 2 [2d ed.], § 859): ‘ The authorities all require that the parol evidence of the mistake and of the alleged modification must be most clear and convincing — in the language of some judges, ‘ the strongest possible ’ — or else the mistake must be admitted by the opposite partythe resulting proof must be established beyond a reasonable doubt? ” As the paragraph is a quotation by the learned justice from Pomeroy’s Equity Jurisprudence, which is immediately fob lowed by a quotation from Christopher St. R. Co. v. Twenty-third St. R. Co. (149 N. Y. 51, 58), that the proof must be of the most substantial and convincing character, I take it that the learned justice did not intend to state a rule in the language. of Pomeroy, thus italicized by the learned counsel, but meant to adhere to that indicated by Martin, J., in the Christopher St. R. Case (supra), inasmuch as the authorities in this State do not require that the proof should be beyond a reasonable doubt. For Parker, J., in Southard v. Curley (134 N. Y. 148), considers this precise question, and after an exhaustive review of more than a score of cases concludes that “ they do not require us to declare that this strong rule of criminal procedure has become a part of the practice in civil actions. Certainly,, this need not be done in view of the many authorities which, both before and since Judge Story
Certain circumstances established beyond cavil make for the plaintiff in that they may afford an explanation of the reason for the mistake, and corroborate the version of the plaintiff. The description as written covers a tract of land acquired by the plaintiff through foreclosure of a mortgage, and that description conforms to the deed of the referee executed therein. After the plaintiff acquired title the plaintiff divided the land into two parcels, which are described as the corner plot and the inner plot, respectively. Plaintiff’s banking house was in Jamaica, and the land was situate at Lawrence, in the town of Hempstead, Nassau county, where, the defendant lived. There were buildings on each parcel; the larger house on the inner parcel remained in the occupancy of Mrs. Mimnaugh, the former owner of the entire tract, and the smaller house on the corner parcel was let to the defendant Taylor. The lands were in charge of the treasurer of the plaintiff, who had made the said defendant an agent for the sale of the two parcels, and all negotiations prior to the day of the execution of the written contract were had between him and the defendant. On that day Taylor met the treasurer, who was about to take a journey, at the railway station in Jamaica. After some conversation, the treasurer referred Taylor to the secretary of the plaintiff at its banking house, and there Taylor was referred to the president of the plaintiff, who was also the county clerk of Queens county. After some conversation between the president, the secretary and Taylor, the president directed a confidential clerk in the county clerk’s office to prepare a contract, and gave to him
I now' consider the testimony adduced by the plaintiff as to the contract made between it and the defendant. The treasurer of the plaintiff states that shortly after December 17, 1900, Taylor told, him that he had a purchaser, but as the purchaser wished to remain unknown, Taylor asked for a contract running to him, and .that Taylor, expressing dissatisfaction with his commission, asked that it might be fixed at any excess over $6,500, which he might ■ obtain, whereupon the bank agreed, and made a contract with Taylor in his own name. Two or three days thereafter,, when the treasurer met Taylor at the railway station, as narrated, Taylor said-that he had come to make a contract, as he had sold the little house on the corner -for $6,800. The. treasurer, who had been called away On business, told Taylor to go to the bank, whence the secretary would take him to the president, who would prepare.the contract: The secretary testifies that Taylor came to the bank and asked for the president, whereupon he was referred to the county clerk’s office. The president returned with Taylor to the bank, and asked-the secretary if he knew of the agreement; the secretary answered that the treasurer had told him, and thereupon the president asked for the papers and departed with Taylor. The secretary looked up the
Opposed to this evidence is the testimony of Taylor alone, whose version is that he was referred to the president as the only man who could fix the price; that he then called upon the president and said that he had come to buy the Mimnaugh property if I could get it anywhere near my price. He asked what I was in position to offer him. I told him. He said he would accept the offer. I told him $6,800. He told me he would send in for the deed and have the contract made out.”
I have said that the version of the defendant was uncorroborated. There is, however, a single exception. He testifies that he took the contracts, read them over separately and compared them with the diagram, and the scrivener says that the defendant did read the description aloud in his presence inside the main office.. But this cannot avail the defendant if the plaintiff’s proof establishes that the contract, as actually made between the parties, was for the purchase of the corner lot alone at $6,800. If the truth is, as the court has found, that the actual contract contemplated the corner property only, and yet it is also proved that the defendant read over the erroneous description, one of two conclusions follows, neither of which affects the right of the plaintiff. Either, reading it, the defendant did not understand but supposed the description expressed the truth, or he did understand and knew that the contract did not express the truth. In the latter case, he stands as one who knowingly sought to overreach his fellow by securing a written contract which did not express the true agreement, and thereby to gain an unconscionable advantage, and he is liable to this action for a reformation. (Kilmer v. Smith, 77 N. Y. 226, 231; Curtis v. Albee, 167 id. 360, 364; Avery v. Equitable Life Assurance Society, 117 id. 451; Stines v. Hays, supra, 369.)
It is said that the omission of the president to read the description precludes the plaintiff from any relief. In Albany City Savings Institution v. Burdick (87 N. Y. 40, 46) the court say: “We are also constrained to differ from the learned General Term. The doctrine laid down by this court in Long v. Warren (68 N. Y. 426) has never before in this State, and very rarely, elsewhere, been applied to a case like this. Indeed, in most of the cases to be found in the books, where relief has been sought against written instruments on the ground of fraud and mistake, the complaining parties were chargeable with the same kind of negligence which exists in this case, to wit, the omission to read or understand the contents of instruments executed or accepted. It has certainly never been announced as the law in this State that the mere omis
I now consider the relation of the defendant Eldert, who-answers that On or about December 21, 1900, Taylor exhibited to him the contract, dated December 20, 1900, and that he became the innocent purchaser thereof for $1,680; that thereupon Taylor executed an assignment to him, and that he paid $1,000, the balance being payable upon the delivery of the deed. The learned court found that the consideration was not paid; that Eldert was not a bona fide purchaser, but had knowledge of the mistake and was privy to it. But even if the evidence failed to establish that Eldert was privy to the mistake- and did not pay any consideration for his assignment, oi", in other words, that he took the assignment innocently and for a valuable consideration, the status of Eldert would not affect the relief afforded by the judgment. Taylor assigned to Eldert his agreement and all his rights, title and interest of, in and to. the same, and Eldert is entitled exactly to the interest which Taylor- took and nothing more. When we as a- court of equity find that in order to express the true contract there must be a reformation of the written agreement, I think that there is no principle of law which permits Eldert to hold the plaintiff to the terms of the unrefof med contract. The contract was not a negotiable instrument, and does not fall within the doctrine which protects a- bona fide purchaser thereof for a valuable consideration. In Reeves v. Kimball (40 N. Y. 299) Woodeuéf, J., regarded such a contract as a mere chose in action. The principle which applies is that Eldert as the assignee takes subject to all of the equities against Taylor, his assignor. (Gerard Tit. Real Est. [4th ed.] 469; Reeves v. Kimball, supra, 299; Schafer v. Reilly, 50 N. Y. 61, 67; Murray v. Lylburn, 2 Johns. Ch. 441; Central Trust Co. v. West India Imp. Co., 169 N. Y. 324 et seq.; 2 Big. Fraud, 454; Cutts v. Guild, 57 N. Y. 229, 233; Warv. Vend.
The judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.
1 Story’s Eq. Juris. § 157.— [Rep.