Lake v. Meacham

| Wis. | Jan 15, 1861

By the Gourt,

DixoN, C. J.

There is no more undeniably sound, wholesome and well founded rule of evidence in proceedings in equity, than that written agreements will not be varied or reformed on the ground of mistake or fraud, except upon the most clear and positive proof that mistake or fraud in reducing them to writing was in fact committed. Upon this subject Judge Stoky says: “ In such cases, if the mistake is clearly made out, by proofs entirely satisfactory, -equity will reform the contract, so as to make it conformable to the precise intent of the parties. -But if the proofs are doubtful and unsatisfactory, and the mistake is not made entirely plain, equity will withhold relief, upon the ground that the written paper ought to be treated as a full and correct expression of the intent, until the contrary is established beyond reasonable controversy.” 1 Story’s Eq. Jur., § 152. In the case of Newton vs. Holley, 6 Wis., 604, the language of this court is to the same effect. It is there said that the writings between the parties must be taken to contain the real contract until the contrary is established beyond reasonable doubt The danger of setting aside or varying the solemn engagements of parties deliberately reduced to writing, by the introduction of parol evidence substituting other material terms and conditions, is so obvious as to put the correctness of this rule beyond controversy. Courts cannot interfere with such contracts when any part of the foundation for the relief rests upon conjecture or mere probability of fact, but the whole must be cleared of all reasonable doubt, and be sustained by solid and convincing testimony. *363In tbe words of Judge Stout, the mistake must be made entirely plain by proofs which are entirely satisfactory. plying this rule to the present case, I do not see how the judgment of the circuit court can be sustained. If I were to decide it upon probabilities of fact raised by the evidence, then I might say that I think it is v'probable that a mistake occurred. But in deciding it upon the ground that I am well and clearly convinced from the parol proofs, as against the presumption of correctness which the law attaches to the instrument itself, I must say that my conclusion is very different. I am not so convinced of the existence of a mistake. On the other hand, there are many facts and circumstances which, to my mind, tend strongly to show that it is possible, if not to some extent probable, that there was no mistake about it. Of these are those deposed to by Louisa Whitney and Lucy Mallory, the two last witnesses examined on the part of the appellants, regarding the manner in which the papers were exchanged, the examinations which they received, the time which was occupied for that purpose, and the mutual expressions of the parties that they were satisfied of their correctness. To these may he added the proofs of the actual value of the lands, and of the annual profits arising therefrom, the fairness of the price paid without the addition of interest, and the length of time which elapsed before the discovery of the alleged mistake. It seems to me that it must be admitted that these, and other like circumstances with which the transaction was surrounded, would, in case the mistake had otherwise -been clearly proved, have had some tendency to raise a doubt upon the matter. But the chief difficulty with the case is, that there is nowhere to be found any clear, positive and satisfactory evidence that the parties ever made any bargain whatever concerning the alleged interest. The complaint alleges that the mistake occurred by the omission by the conveyancer to insert the words “with interest, payable annually,” according to the bargain and direction of the parties. No proof was offered to show, or tending to show, that the latter part of the alleged mistake ever in fact happened, that is, that the interest, if any was bargained for, was to be paid annually. The *364judgment of the circuit court is, that the contract be so reformed as to read “ with interest.” Mr. Babcock, who drew the papers, testifies positively that he has no recollection that the parties ever said one word to him or in his presence upon the subject of interest, either by way of stating their agreement or directing him to include it in the contract which he was to prepare; and that independently of the papers, he has no remembrance of its terms. Still, he says that from an examination of the papers and the singularity of the fact that a mortgage to run so long should be without interest, his impression is that the words “ with interest ” were omitted by mistake. Again he says, after alluding to the same circumstances, “ 1 have no doubt that the words 1 with interest ’ were left out of the contract through a mistake.” This is the substance of his testimony; and what is it, after all, but a mere surmise or strong suspicion of fact arising in his own mind after an imperfect survey of a transaction which happened many years before, and of which every positive idea had long since passed from his memory ? Clearly, nothing. If he cannot say there was a mistake, I certainly cannot see how this court can, upon his evidence.

The other evidence in support of the respondent’s claim consists in the alleged admissions of Edgar Meacham, deceased. Aside from the caution with which such testimony is to be received, on account of the ease with which it may be fabricated, and the difficulty with which it is to be met and disproved, I may say that the nature of the admissions here given, the circumstances under which they are said to have been made, and the character and relation of the witnesses by whom they are sought to be proved, are such as, in my judgment, make it very unsafe for us, upon them alone, to set aside or vary the contract as it now stands. I need not give the particular reasons for our conclusions upon this branch of the case. They will be readily perceived by a perusal of the testimony.

The judgment of the circuit court is reversed, and the case remanded for further proceedings in accordance with this opinion.

*365•Paine, J.

I agree with, the majority of the court as to the law applicable to this case, but differ from them as the effect of the evidence, which fully satisfies me that it was the intention of the parties to provide for interest, and that this was omitted in the note by mistake.