79 Wis. 289 | Wis. | 1891
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
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?
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.