75 N.J. Eq. 394 | New York Court of Chancery | 1909
It seems clear that under the averments of the bill no relief can now be granted of the nature sought.
The contract between the parties, under which the work was performed, was a parol contract. The letter, reformation of which is sought, formed no part of any contract between the parties, but was a letter written by complainant, at the request of defendant, after the contract between the parties was complete and work under the contract was in progress, to enable defendant to file, it among his papers as a written memorandum of the contract already entered into. The bill does not aver that the letter in question was ever adopted by defendant, through mistake or otherwise, as the contract between the parties. Before a letter or other written instrument can be properly treated as a contract between the parties which will be effective to take the place of and supersede a parol contract, it should at least appear that the writing has been mutually adopted by the parties as an instrument embodying the terms of the agreement. The letter, according to the averments of the bill, is but an erroneous expression pf complainant’s recollection of the terms of the parol agreement. Under the facts stated in the bill the letter can only be utilized by defendant in the law court as evidence tending to corroborate defendant’s claim of the terms of the parol contract. Under such circumstances I am unable to discern any disability of the law court which will prevent as full and adequate an inquiry into the facts to ascertain the exact terms of the parol agreement as can be afforded in this court.
If, on the other hand, the bill averred that the letter in question was a written instrument which had been mutually determined upon or adopted by the respective parties as embodying the substance of their agreement, and that through mutual mistake or through mistake upon the part of complainant and fraud or inequitable conduct upon the part of defendant the written instrument erroneously stated the terms of the agreement actually
I am obliged to advise an order allowing the motion of defendant.
