148 N.W. 12 | S.D. | 1914
Plaintiffs, in their complaint, sought the reformation of a written agreement wherein defendants covenanted to convey real property to them; they also sought the specific performance of such covenants. Trial was had to the court without a jury; findings and conclusions — finding that through mutual mistake the writing did not express the agreement of the parties and that the same should be reformed to express such agreement and, as so reformed, should he enforced, — were, entered; judgment was ren-reded in conformity with such findings; motion for new trial was denied; and defendants appealed to this, court from; the judgment and from the order denying a new trial.
The. written agreement, so, far as material to the issues 'before us, was in words and figures as follows:
"We, Mrs. Rose L. S-wengel, Laura M. Zimmermann, Mrs. Sarah R. Korte and Mrs. Esther 1VÍ. Korte agree .among ourselves * * * to the following agreements as to' the contest of the late John G. Zimmermann’s will.
“First: That Mrs. S'arah R. Korte and Mrs. Esther M. Korte agree to withdraw the -pending contest to the late John G. Zimmerman’s last will, and further agree not to take either collectively or separately in any subsequent contest, nor in any way aid any one else in contesting or delaying the execution of the said will. That they immediately withdraw the pending contest now pending in Winona, Minn., where the will is now pending probation.
*245 “Secondly: That Mrs. Rose L- Sw'engel and Miss Laura M. Zimmermann agree to deed free of all incumbrance the Rondell Y\ Sec. as also the Westport Sec. to Mrs? Sarah R. Korte and Mrs. Esther M. Korte, who are to have and to hold an undivided and equal interest in the said real estate previously mentioned.
“That Miss Laura M. Zimmermann is to deed to Mrs. Sarah R. Korte- one lot -of 30 ft. width free of all incumbrances which lot lies joining Mr®. Sarah R. Korte’s home on Sec. Ave. East.
“That Miss Laura M. Zimmermann further agrees to give to Mrs. Esther M. Korte one note of $800.00 drawing 8 per cent interest from date, -due on or before May 8th, 1909, as Miss Laura M. Zimmermann may determine. The interest on said note -to be paid annually.
“Further, That Miss ■ Laura M. Zimmermann agrees to- pay in money to Mrs. Rose L- Swengel the difference in value between the Rondell -and Westport real estate - as determined by the legally appointed and named appraisers, named by the probate court before whom the will in question is being probated.
“Further, Mrs. Rose L. Swengel and Laura Zimmermann agree to issue deeds to Mrs. Sarah R. Korte and Mrs. Esther M. Korte within two weeks after the said real estate falls lawfully to them or when the probate court invests in them title and right to said property.
“This contract as entered into between and among ourselves, uninfluenced, Mrs. Sarah R. Korte, Mrs. Esther Korte, Mrs. Rose Swengel and Miss Laura Zimmermann, is exactly as we agreed to among -ourselves and are willing to subscribe -our names to the same and stand individually and collectively on this contract as being final as to the absolute settlement between ourselves, on the contest of the late John G. Zimmermann’s' will, * *
Miss Laura Zimmermann,
Mrs. Ro-sa Swengel,
Mrs. Esther Korte,
Mrs. Sarah Ko-r-te.
“Signed and sealed May 8-06 at”
Appellants’ brief seems to be based largely upon the contention that §1311 C. -C. — 'our statute of frauds in relation to- the sale of real property or some interest therein — is involved in the questions presented upon this appeal. They seem to especially rely upon the opinion in Shumway v. Kitzman, 28 S. D. 577, 134 N. W. 325, as laying down propositions of law in conflict with the holdings of the trial court herein. The S'humway case presented the question of whether the various written memoranda— mainly in the form of letters — disclosed that the minds of the parties to said action had ever met upon the terms of any contract in relation to the land involved in such action; in that case- there arose no question upon the admission of evidence to explain the meaning of any term used in the various memoranda, neither was there presented any question of the reformation of such written mem-oranda. In the case now before us, the statute of frauds is in no manner -involved; there' is no- question -presented, upon this written memorandum -or agreement, that would not be involved herein if the statute of .fraud© was not a part of the law of this state; without such statute, if tw-oi parties, after oral negotiations, should see fit -to reduce their -agreement to writing, such writing would supersede and -take the place of such oral negotiations, and if an action was thereafter brought upon -such written -agreement, the plaintiff would have to- stand -or fall upon such writing as signed or seek the reformation thereof; regardless -of ©uch statute, there could be no specific performance of a -contract for the conveyance of land unless such -contract met the requirements of the statutes relating to -specific performance- Of obligations, §§ 2339-2348 C. C_
“In the simplest case that can be put, namely, that of an instrument appearing on the face of it to be .perfectly intelligible, inquiry must be made for a subject-matter to satisfy the description. If, in the .conveyance of an estate, it is designated as Blackaere, parol evidence must be admitted to show what field is known by that name;” and in §288 the author says:
“If the language of the instrument is applicable to several persons, to several parcels of land * * * or the terms be vague and general, or have divers meanings, * * * ; in all these and the like cases, parol evidence is admissible of any extrinsic circumstances, tending to show what person or persons, or what things, were intended by the party, or to. ascertain his meaning in any other respect.” In Hollis v. Burgess, 37 Kan. 487, 15 Pac. 536, the trial court admitted parol evidence to show what was included in the term1 “Snow Farm,” and the appellate court said:
“The land which formed the subject of the contract was described in the letters as the ‘Snow Farm’ and it is objected that the description is too uncertain. The general doctrine regarding the certainty of description required under the statute of frauds, contended for by counsel for plaintiff in error, is not qttestioned. It is not essential, however, that the description should be given with such particularity as to make a resort to extrinsic evidence unnecessary. If the designation is so definite that the .purchaser knows exactly what he is buying, and the seller knows what he is selling, and the land is so described that the court can, with the aid of external evidence, apply the description to the exact property intended to be sold, it is enough. Fry, Spec. Perf. §209; Pom. Cont. §90. The property in controversy- was commonly designated as the ‘Snow Farm.’ It was so> known and spoken- of by all the parties at the time of the negotiations, as well as -before and since that time. The description could be connected with the land without difficulty, and no- doubt or dispute could -arise regarding either its location or extent.”
In Preble v. Abrahams, 88 Cal. 245, 26 Pac. 99, 22 Am.. St. Rep. 301, the land was described as “forty acres of the -eighty acre tract at Biggs.” The trial court .admitted parol evidence of another trans
“It is not strictly accurate to say that the subject matter must be absolutely certain from the writing itself, or 'by reference to some other writing. The true rule is, that the situation of the parties and the surrounding- circumstances, when -the contract was made, can be shown 'by parol evidence, so that the court may be placed in the position of the parties themselves; and if then the subject matter is identified, and the terms appear reasonably certain, it is enough.”
See also the discussion of this question found in §§2470-4 Wigmore on Evidence. Wigmore refers with approval to the leading case of Miller v. Travers, 8 Bing-. 244, wherein it was said:
“The cases to which this construction [Ambiguitas verborum latens venificafione suppletur] applies will 'be found to range themselves into two separate classes. * * * T.he first class is, where the description of the thing devised, or of the devisee, is clear upon the face of the will; but upon the death of the testator it is found that there are more than one estate or subject matter of devise, or more than one person whose description follows out and fills the words used in the will. As where the testator devises his manor of Dale, and at his death it is found that he has two- manors of that name, South Dale and North Dale; or where a man devises to his son John, and he has two sons of that name. In each of these cases respectively parol evidence is admissible to' show which man- or was intended to pass and which son was intended to take.”
We find the following announced in 34 Cyc. 914:
“Where, after making an agreement, in the process of reducing it to writing, through mistake of law, the instrument fails*252 to express the agreement actually made, there is ground to reform to the same extent as if the failure of the instrument to1 express the contract was caused by mistake of fact, since such mistake of law prevents- the real contract from being embodied in the instrument. This includes -a mistake arising from ignorance or misapprehension of the parties as to the legal effect' of the words or language used to express their intention.”
At §115 Story’s Equity Jurisprudence, it is said:
“Where an instrument is drawn and executed, .which professes or is intended to carry into execution an agreement previously entered into, but w’hic-h, by mistake of the draftsman, either as to fact or to law, does not fulfill that intention, or violates it, equity will correct that mistake, -so as to produce a conformity to the instrument.”
At § 845 Pomeroy’s Equity Jurisprudence, it is said:
“If on the other hand, after making an agreement, in the process of reducing it to a written form, the instrument, by means of -a mistake of law fails to express the contract which the parties actually entered into, equity will interfere with the appropriate relief either by way of defense to its enforcement, or by cancellation, or by reformation, to the same extent as if the .failure of the writing to express the real contract was caused by -a mistake of fact. In this instance there is no mistake as to the legal import of the contract actually made; but the mistake of law prevents the real contract from being embodied in the written instrument. In short, if a written instrument fails to express the intention which the parties -had in making the contract which it purports to contain, equity will grant its relief, affirmative or defensive, although the failure may have resulted from a mistake as to the legal meaning and operation of the terms or language employed in the writing. - Among the ordinary examples of such errors are those as to the legal effect of a description of the subject matter, and as to the import of technical words and phrases; but the rule is not confined to these instances.”
In Abraham v. North German Ins. Co., (C. C.). 40 Fed. 717, the court says:
“When-, however, the mistake lies, not in a misunderstanding of the principles of the law a-s controlling the subject of the contract or the rights of the parties -connected therewith, but merely*253 in the terms proper to be used in defining the actual contract of the parties, such a mistake, though in one sense a mistake of law, is one that a court of equity will correct.”
In Lansing v. Com. Un. Assur. Co., 4 Neb. (unof.) 140, 93 N. W. 756, the court said:
“In the case at bar, even though it 'should be found that there is a failure of proof as to a mistake of fact, it is apparent that there was a misconception of the parties' as to the legal import of the language used to effectuate the contract which they intended to make. There is no 'doubt, however, under the evidence, as to the actual contract — the contract which both parties had in mind ■ — and it follows that equity has power to grant relief against the mistake.”
. In Wiis. M. & F. Ins. Co. Bk. v. Mann, 100 Wis. 596, 76 N. W. 777, the court says:
“The following rule is land down by standard text writers, substantially copying the language of Mr. Justice Washington in Hunt v. Ro-usmaniere’s Adm’rs, 1 Pet. 1, and has been frequently approved by this court: 'Where an instrument is drawn or executed, which professes or is intended to carry into execution an agreement * * * previously entered into, but which, by mistake of the draftsman either as to fact or law, does not fulfill that intention, or violates it, equity will 'correct that mistake so as to produce a conformity to the agreement.’ Many c'ases may be cited to' support the contention made by appellant’s counsel, that a mistake of law is not 'remediable in equity, but they do not fit this case. They refer to a mistake of law in the making of a verbal contract as distinguished from a mere mistake in reducing the contract to writing through some misapprehension of the legal meaning of the language used. The rule applies where the contract is written so as to express the agreement as understood, though the understanding were wrong through ignorance of law; it does not apply where the contract is fully, understood, but is incorrectly expressed- in the writing through ignorance as to the legal import of the language selected by the parties for that purpose. Though there is some confusion in the adjudicated cases through,-failure to correctly make the distinction referred to, it is so well defined that accuracy in the application of the legal principles involved may be obtained without serious difficulty.”
“Neither party to an obligation can foe compelled specifically to perform it, unless the other party thereto has performed, or is compellable specifically to perform, everything to which the former is entitled under the same obligation, either completely or nearly so, together with full compensation f-or any want of entire performance.”
Counsel argue, and cite authorities in support of the proposition, that, inasmuch -as there had to -be an appraisal of these two- properties before the amount to be paid by Laura to- Rosa could foe determined, the court could' make no 'decree- directing-such payment. Conceding that, if Rosa were asking -a decree di-. recting such payment, she could not obtain same owing to- the fact that no appraisement had been made, yet that fact is immaterial under the facts of this case. Here we have virtually two contracts; the -one between respondents upon the one side and appellants upon the other; the other between the two appellants. It is this first contract with which we are concerned — the mere fact that these parties saw fit to incorporate into the one writing both of these contracts in no manner affects respondents’ right to have -the -contract, to which they are parties, enforced. Having performed their covenants, they are -entitled to the performance by appellants of their -covenants to- them regardless of the performance or non-performance of any agreement which appellants made with one -another though -the consideration -of such agreement may have been the performance of some one or more' covenants in their contract with respondents. What we have said
The judgment and order appealed from are affirmed.