Komula v. General Accident, Fire & Life Assurance Corp.

165 Wis. 520 | Wis. | 1917

Rosenberry, J.

It is contended (1) that a court of equity cannot modify a contract so as to work a. substitution of parties; (2) that plaintiffs are estopped by the retention of the contract an unreasonable length of time without objection ; (3) that the findings are not supported by the evidence; (4) that Stewart was not an employee within the meaning of the Compensation Act, but was an independent contractor; (5) that plaintiffs at most can recover' only the amount paid in cash, $832.73.

1. It is. urged that a court of equity cannot reform a contract so as to work a substitution of parties. Under the facts in this case we are of the opinion that this rule has no application here. There was no attempt to make a new contract or to substitute one party for another, but to make the contract speak the truth and set forth the contract actually made. There was but one contract made, and under the findings of the court that was the contract made by John Komula Company. The court has ample power to compel the reformation of the contract so as to correct a misnomer, and in so doing it does not malee a new contract or substitute one party for another.

2. It is claimed that the plaintiffs are estopped under the •doctrine of Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 246. We think the situation in the instant case is clearly distinguishable from that in Boslwick v. Mut. L. Ins. Co. In this case there is no dispute as to the contract which was in fact to be delivered. It is claimed upon one side that there is an error in the description of the parties, and it is claimed upon the other side that no such error exists. The fact has been found adversely to the contention of the defendant. The defendant is not injured, and the plaintiff or John Komula has gained nothing. It being an undisputed fact that John Komula had no employees individually, he therefore accepted no benefits under the contract. If John Komula were at the same time carrying on business as an individual and had had the benefit during the interim of the policy of insurance as issued in this case, a different situation would be presented. We think the plaintiffs were not estopped and that their failure to notice the error in the contract was excusable, as found by the trial court; it appearing that the plaintiffs were all Einlanders, none of them able to read or write English except Oust, who had a limited knowledge of the language, and all were unfamiliar with the conditions under which business of this character is done.

3. Other objections are made which amount to a contention that the findings are not supported by the evidence. A careful examination of the evidence convinces us not only that the court was not clearly wrong, but that it was clearly right, and its findings are amply supported.

4. It is contended that Stewart was not an employee, but was an independent contractor. The trial court affirmed the finding of the industrial commission holding that Stewart was an employee and not an independent contractor. Even if the. judgment of the circuit court is not binding upon the defendant because the defendant was not properly a party, an examination of the record convinces us that the question was correctly decided. The fact that the compensation of a man subject to the general direction of an employer is fixed on the basis of the amount of work done rather than on the amount of time spent, is not controlling.

5. The court found and the undisputed fact is that the tract of land conveyed to Stewart was of the fair market value of $450. The purpose of the clause in the policy of insurance requiring the loss to be paid in money is correctly stated by the defendant to be as follows: “The purpose of the insurer in framing this clause was to protect itself against fraud in the payment of losses.” There are no circumstances indicating that there was any collusion or bad faith in the transaction. Stewart desired to purchase the land; the plaintiffs desired to sell it, and as a part of the payment of the award it was agreed that the land should be accepted in lieu of the sum of $450. Had the plaintiffs paid the full amount 'and Stewart immediately handed back $450 and received the deed in question, the terms of the policy would have been literally complied with. Under the facts in this case, we think the provisions of the policy were substantially complied with, and that plaintiffs may recover the full amount of the award.

By the Court. — Judgment affirmed, with costs.