238 Mass. 337 | Mass. | 1921
By deed dated September 25, 1901, Herbert M. Plimpton, to whose rights the defendant Plimpton Press has succeeded, conveyed a parcel of land in Norwood to the New England Railroad Company, the predecessor in title of the plaintiff. The deed contained the following: “As part of the consideration for this conveyance said Railroad Company, for itself and its successors and assigns, agrees to maintain a connection from the line and tracks of said railroad to a certain track now built on a trestle adjacent to the manufacturing establishment on the adjoining land of said grantors, and to maintain said trestle and the track thereon so long as said connection does not interfere with the proper development of the railroad company land for purposes of said railroad and the business done in connection with said railroad upon said track upon said trestle is sufficient to properly remunerate the railroad company for and warrant the maintenance of said connection.” In 1911 it became necessary to rebuild the trestle; and as this plaintiff refused to do the work, it was done by the defendants Plimpton, Bird and Kendall.
They then brought an action to recover the cost, and obtained a finding against the railroad company for $1,532.72. That finding was confirmed in Plimpton v. New York, New Haven & Hartford Railroad, 221 Mass. 548, where the facts appear more at length.
The plaintiff seeks by this bill in equity to have said deed reformed, by striking out the clause “ and to maintain said trestle and the track thereon;” claiming that this was inserted by an error of the scrivener or through a mutual mistake of the parties. The case was tried before a judge of the Superior Court. No evidence was offered in support of the allegation of a mistake by the scrivener. In addition to certain subsidiary findings the judge found that there was no mistake in regard to the terms of the deed, that “the plaintiff does not make out the facts essential to its case, without regard to loches or res judicata;’ and he ordered a decree dismissing the bill. On this appeal the decree must
It is settled that a deed will not be reformed on the ground of mistake except upon full, clear and decisive proof that the instrument failed to express the intent which both parties had in making it. Coolidge v. Loring, 235 Mass. 220, and cases cited.
The plaintiff bases its claim largely on the fact that the agreement of 1897 did not contain the clause in question. But the force of that executory contract ceased when the deed was accepted as performance of it. As was said in Williams v. Hathaway, 19 Pick. 387, 388: "... by the rules of law, when a deed is executed in pursuance of a contract for the sale of land, all prior proposals and stipulations are merged, and the deed is deemed to express the final and entire contract between the parties.”
The plaintiff also relies on the fact that in 1908 and 1910 some repairs on the trestle were paid for by H. M. Plimpton and Company. But the trial judge found that “these were inconsiderable in amount and there is nothing but the fact of partnership to lead one to believe they received the personal attention of Herbert M. Plimpton, the surviving party to the contract of 1897, and the sole grantor in the deed recorded in 1902.” In fact, the first letter that appears to have been signed by Mr. Plimpton himself, that of November 15, 1910, states, “ ... it is my recollection that at the time this contract was made the railroad was to maintain the connection of this side-track, and to maintain the trestle in consideration for the land which we deeded to the railroad and the amount of business which we gave it. This was submitted to our attorney at the time for his Approval, and this seems to be the way he recollects the matter.” Obviously the judge could find that there was no mistake on the part of the defendants.
Mistake on the part of the plaintiff alone would not entitle it to the relief sought. And there was evidence from which the judge may have found that even the alleged mistake of the plaintiff was not. established. The deed, while dated September 25,' 1901, was not recorded until May 27, 1902. After it came into the possession of the plaintiff’s real estate agent, 'James W. Perkins, he forwarded it to the attorney of the railroad company. With it he sent a letter in which he quoted from the conveyance the paragraph dealing with the trestle, called the attorney’s
The present record emphasizes the force of what was said in the earlier case: “It is conceivable that the written instrument of 1897 by mistake or otherwise did not express the real agreement of the parties and that the correction was made in the deed of 1901.” However that may be, the decision of the trial judge, far from being clearly wrong, seems to be fully justified on this record.
Decree affirmed with costs.
