42 Minn. 440 | Minn. | 1890
This is an action to reform a contract to convey real estate, and to enforce specific performance of it as reformed. The appeal is by plaintiffs from an order sustaining a demurrer to the complaint. The complaint sets forth a written authority by defendant to W. A. Barnes & Co. to sell certain real estate, anda written contract of sale executed in the name of defendant by Barnes & Co., agreeing to sell the real estate to plaintiffs on terms set forth in it. In both the real estate is described as “Lot (6,) block (1,) Addition Powder-Horn Park.” It is alleged that “block 1” was inserted in the written authority, by the mutual mistake of the parties to it, instead of “block 2,” which they intended to insert, and which ought to have been inserted in it; and the same mutual mistake is alleged as to the description in the contract. The reformation prayed for is by inserting “block 2” in the stead of “block 1.”
Certainly a court will not reform an instrument unless it be such a one as may be enforced after it is reformed. It would be doing a merely useless thing. The contract to sell could not be enforced, even if corrected in respect to the description of the property, unless in other respects it appears to be such a contract as the agents were authorized to make. The respondent claims that the written authority is so indefinite and uncertain that it is impossible to tell what were to be the terms of sale, and that it is therefore void. ■ The authority was in these words: “I, the undersigned, hereby authorize W. A. Barnes & Co. to sell the following described real estate, located
As the order appealed from gave plaintiffs leave to amend their complaint, and as on the trial of the cause, if they do so amend, the same questions may-arise, we will decide those questions principally argued here, and on which, as appears from its memorandum filed, the court below decided the demurrer. The propositions made by respondents are that the authority given to the agent is a naked power, and a court will not reform a mere power, and that a court will not reform a contract to convey real estate, within the statute of frauds, by inserting in it a description of real estate other than that described in it. A court will not reform a mere pow'er, for the obvious reason that it is revocable, and the grantor of it might at any time make nugatory the decree of reformation by exercising his right to revoke. Such a decree would be ineffectual. But when the agent has acted upon it, has exercised the power, and others have acquired rights
Order affirmed.