Kessel v. Kessel, 79 Wis. 289

Kessel v. Kessel

79 Wis. 289 | Wis. | 1891

Lyon, J.

The agreement and mortgage which the plaintiffs seek in this action to have reformed, so that the same shall express the understanding and contract of the parties thereto, are found by the court to be defective in four particulars. These are: (1) The mortgage does not cover and secure the performance of all the stipulations in the agreement to be performed by the defendant Peter, Jr.; (2) the agreement does not provide that Peter, Jr., shall pay plaint*294iffs an annuity of $150 while they continue to reside in his house and receive their Support from him; (3) it does not contain a stipulation that Peter, Jr., shall give to each •of his two unmarried sisters his note for $700; and (4) it •does not provide, that Peter, Jr., shall pay the plaintiffs $2,500 in case they become dissatisfied with their treatment, and leave his house and support.

The defendants admit that the mortgage should be so reformed as to secure the performance of all the stipulations of the agreement. The agreements to pay the annuity of $150 while the plaintiffs lived in the house of Peter, Jr., and received their support from him, and to give the $700 notes to his sisters, are abundantly proved, and not seriously controverted. They have ceased, however, to be of importance in the case, for the notes to the sisters were given, and the annuity was paid for two yeai’s, and payment thereof for the third year was tendered and refused. Hence the first three omissions from the instruments in question may be dismissed from further consideration.

This leaves .only the question, were the instruments properly reformed in respect to the $2,500? The circuit court found that, at the time they were executed and delivered, Peter, Jr., had no- definite knowledge of the terms thereof, but trusted entirely to his father, the plaintiff Peter, Sr., to have the same drawn as he might think best for the mutual protection and benefit of all the parties thereto. The testimony fully supports this finding. Hence the directions given by Peter, Sr., to the notary are controlling, and whatever he directed to be inserted in the instruments should have been inserted therein. If anything so directed is not contained therein, they should be reformed accordingly.

Did Peter, Sr., direct the notary to insert in the agreement a provision that, if plaintiffs were dissatisfied with their treatment, they might, at their option, leave his house and support, and thereupon become entitled to $2,500? *295Peter, Sr., testifies that be gave sucb direction to the notary, and his testimony is substantially supported by that of the notary. The latter testified on this subject as follows : “ The $2,500 he could pay under certain circumstances ; in case there should be a disagreement between both parties, that the party of the first part Peter Kessel, Jr., should pay the party of the second part [the plaintiffs] the $2,500.” While some of his testimony, standing alone, may seem to conflict somewhat with that here quoted, yet the testimony of the notary, as a whole, is fairly reconcilable, and is in accord with the above quotation therefrom. There is little or no testimony to the contrary. Even Peter, Jr., does not deny that such direction was given by his father to the notary. Besides, the agreement mentions a note and mortgage for $2,500. It is probable that Peter, Jr., has no knowledge on the subject. One Grasse, who was present when the instruments were executed, and who attested them, testified that the notary read them to Peter, Sr., in German, that nothing was read about $2,500, and Peter, Sr., said they were all right. But it must be remembered that the latter was very deaf, and he testified that he did not understand the reading or explanation of the instruments when rendered in German. The testimony of Grasse does not seriously controvert that of Peter, Sr., and the notary. The witnesses were Germans. Some of them testified through an interpreter, and their testimony, as it appears in the record, is somewhat confused. In such a case the opportunity of seeing the witnesses and hearing their testimony is invaluable; indeed, almost essential to a correct understanding of their testimony. The circuit judge had this advantage, and we should hesitate to disturb his findings on mere questions of fact, even though we might have some doubt of their accuracy. But we have here no such doubt. The testimony as it appears in the record satisfies us that the facts were found correctly, and *296that the instruments should be reformed to express what they were intended to express. Furthermore it is most equitable that the correction should be made. Peter, Sr., testified that it was his intention in the transaction to give his son $5,000. The reformed instruments accomplished this intention. This is a very liberal compensation to Peter, Jr., for twelve years’ of service on the farm, over and above his maintenance.' For the reasons above stated we cannot disturb the judgment on the merits.

A single question of law was raised in the argument. The notary testified on his cross-examination, in substance, that Peter, Sr., and another man came to see him in the summer of 1889, about the papers, and that he said to them they were written as Peter, Sr., intended, and the latter became angry. The person with Peter, Sr., at the time was Mr. Miller, who was acting as attorney for Peter, Sr. He was called as a witness by defendants, and interrogated as to what the notary said on that occasion. The court rejected his testimony, and gave as a reason therefor that Miller was acting as attorney for Peter, Sr. The proposed testimony was not competent on the merits, and was only admissible (if at all) for the purpose of impeaching the testimony of the notary. But there was nothing to impeach. The testimony of the notary was favorable to the defendants ; it was just what they desired, and as they claimed the fact to be. So, whether the court gave a correct reason for rejecting the testimony or not, it was properly rejected.

By the Court.—The judgment of the circuit court is affirmed.