12 N.Y.2d 42 | NY | 1962
The question before us is whether reformation should be granted where the written executed contract contains an essential term which does not represent the term as originally agreed upon in the oral negotiations. The remaining essential terms were not fixed until the execution of the formal contract.
The development of the negotiations and agreement are set forth as follows. Plaintiff, a fence building company, through its sales estimator, Mr. Harkness, and defendant, who conducted a Summer camp, entered into negotiations on March 17, 1958 concerning new fencing around three tennis courts. Harkness offered to prepare estimates, and by telephone told defendant that he had made an estimate “ on 484 feet, of ten-foot high chain-link fence * * * in one width” at $2,040. Because of the amount of money, defendant asked if there was anything else that could be done, to which Harkness replied for less money ‘ ‘ we could figure that in hex netting, otherwise the specifications the same as in the chain-link ’ \ Although defendant testified Harkness personally came to the camp and viewed the area at this time, which Harkness denied, the realm of discussion was over the cost of fence material. Even with a possible idea of enclosing an additional handball court because of the savings in the use of hex netting, the 484-foot figure, defendant testified, ‘1 was a fair estimate of the whole area ’ ’. In any event, defendant requested both estimates.
Harkness prepared the two estimates, one for chain-link, the other for hex netting, gave them to a stenographer, who typed them on two separate contract forms. Harkness looked them over quickly, and mailed them to defendant. Except as to the differences about to be noted, they are identical.
The first proposal dated March 21,1958 specifies “ Length 484 linear feet ”, “ Height 10' ”, “ Fabric 2" mesh #9 gauge galv. p.hain link “ Price Two Thousand Forty Dollars ($2,040.00) ’ ’. This proposal was not accepted by defendant. The second pro
When construction around the tennis courts was almost completed, defendant inquired about enclosing the handball court. Harkness quoted a price based on the tennis court price and, although a letter from plaintiff was sent on May 22, 1958 confirming the estimate and requesting a duplicate letter be signed and returned, the work went on without this additional approval.
At the completion of the fencing work, the job superintendent measured the area fenced. The perimeter of the tennis courts turned out to be 534 feet, and in addition there were 50 feet on each side of the handball court, a total of 634 feet. The total amount of hex netting used was thus 1,268 feet, since the fence was put up in 2 widths of 5 feet each. Plaintiff sent defendant a bill dated May 31, 1958, stating a balance due of $1,794.50. This sum was arrived at by adding $1,829 “ as per Contract dated 4/2/58” plus “ 150' additional fence furnished and installed @ $3.77 per ft. as per estimate dated 5/22/58 ”, a total of $2,394.50 less $600 deposit. On July 5, more than a month later, and without any protest meanwhile, defendant mailed plaintiff a check for only $597.92 together with a letter stating:
“ Enclosed find $597.92 which pays up for 634 feet installed, and which was based on the original contract price. I find you made an error in your calculations. 968 linear feet priced at $1829.00 makes 634 feet equal to $1197.92. Six Hundred dollars has been paid, leaving a balance of $597.92.
‘ ‘ I would like to enclose another area which I estimate about 300 feet. Kindly get in touch with me to make arrangements as we then can use up the remaining 334 feet of our contract. ’ ’
Thereafter, plaintiff instituted this action to reform the executed contract to read 484 linear feet.
The sole issue before us is whether reformation should have been granted. In Ross v. Food Specialties (6 N Y 2d 336, 341) this court stated: “We have consistently and repeatedly held that before a reformation can be granted the plaintiff ‘ must establish his right to such relief by clear, positive and convincing evidence. Reformation may not be granted upon a probability nor even upon a mere preponderance of evidence, but only upon a certainty of error ’ nor may the plaintiff ‘ secure reformation merely upon a showing that he or his attorney made a mistake. In the absence of fraud, the mistake shown 1‘ must be one made by both parties to the agreement so that the intentions of neither are expressed in it ” ’ (Amend v. Hurley, 293 N. Y. 587, 595; Salomon v. North British & Mercantile Ins. Co., 215 N. Y. 214; Strong v. Reeves, 280 App. Div. 301, affd. 306 N. Y. 666). * * * Reformation is not designed for the purpose of remaking the contract agreed upon but, rather, solely for the purpose of stating correctly a mutual mistake shared by both parties to the contract; in other words, it provides an equitable remedy for use when it clearly and convincingly appears that the contract, as written, does not embody the true agreement as mutually intended ” (emphasis in original). However, in Hart v. Blabey (287 N. Y. 257, 262), this court invoked the equitable doctrine.
It clearly and convincingly appears from the record here that this is a case of a mistake on the part of the plaintiff’s agent in typing the erroneous linear ground measurement, which plaintiff did not discover before submission to the defendant, and the latter, with knowledge of the mistake, trying to take advantage of the error. The writing itself did not represent the understanding of either party as to the area to be fenced which had been agreed upon previous to the writing, and thus did not embody the true agreement, as mutually intended, relating to the area.
This is not a case where the plaintiff unilaterally and mistakenly estimated the linear feet and defendant, without a duty to speak and absent fraud, agreed to the proposal. Should these circumstances have been present in the contract’s reduction to writing, there would be no scrivener’s mistake or mutual mistake of fact, the agreement would be the intended one by the parties, and equity would not “ reform ” the executed contract (Isaacs v. Schmuck, 245 N. Y. 77, 82). This set of circumstances is not presented here by the record.
There is clear and convincing evidence that there was an agreement between the parties as to the area to be fenced before the formal written contract was executed, and then an error was made, albeit by plaintiff, in the reduction of the antecedent expression of the parties into the complete contract (see 3 Cor-bin, Contracts, § 614, pp. 723-724). The only question between the parties on the execution of the written contract was the type of fencing to be constructed and cost thereof, and admittedly these essential terms were not fixed until the formal contract was signed. These latter terms are not sought to be reformed.
The situation presented clearly calls for relief, and the only practicable method of achieving such a result is by the equitable remedy of reformation. The Trial Judge dismissed the com
Chief Judge Desmond and Judges Dye, Froessel, Van Voorhis and Burke concur with Judge Foster ; Judge Fuld concurs in result.
Judgment reversed, with costs in all courts, and matter remitted to Special Term for further proceedings not inconsistent with this opinion.