18 N.Y.S. 102 | New York Court of Common Pleas | 1891
To entitle a party to the reformation of a written contract, it is incumbent upon him to show affirmatively either that it was executed, in respect to some material matter therein omitted or contained, under a mutual mistake, or that one of them executed it, in respect to such matter, under a mistake, and that the other was guilty of fraud or other unconscionable conduct at the time of execution by him. 3 Pom. Eq. Jur. §8 845,1376) Avery v. Assurance Soc., 117 N. Y. 451, 458, 23 N. E. Rep. 3; Born v. Schrenkeisen, 110 N. Y. 59,17 N. E. Rep. 339; Savings Inst. v. Burdick, 87 N. Y. 40; Paine v. Upton, Id. 327; Kilmer v. Smith, 77 N. Y. 226; Lanning v. Carpenter, 48 N. Y. 409; Pitcher v. Hennessey, Id. 415. In the present ease the complaint was grounded upon the mistake of the plaintiff, and the alleged inequitable conduct of the defendant, in that he executed the contract sought to be reformed, knowing at the time that the sum of $5,213, instead of $4,213, was erroneously therein stated to be payable to him for the improvements to be made by him to plaintiff’s premises; such conduct, if proved, being fraud. It does not appear that the trial judge found the fact of such knowledge or other inequitable conduct on the part of the defendant, nor did he find that defendant did not have such knowledge, or that he was not guilty of other inequitable conduct, in and about the execution of the contract by him; and while in such a case the appellate court may, if the evidence would warrant it, presume in support of the judgment that a fact essential to uphold it was found and considered by the trial judge, but omitted from the findings appearing, (Sheldon v. Sherman, 42 N. Y. 484, 489; Meyer v. Lathrop, 73 N. Y. 315, 321; Hays v. Miller, 70 N. Y. 112, 116; Grant v. Morse, 22 E. Y. 323; Rider v. Powell, 28 N. Y. 310; Doty v. Carolus, 31 N.
Neither did the proof of mutual mistake in the execution of the contract constitute a variance of so grave a character between it and the allegations of the complaint as to amount to a failure of proof. Plaintiff did not establish his cause of action in all the details in which it was alleged, but he nevertheless substantiated his right to have the contract set forth in the complaint reformed in the particulars mentioned in his prayer for relief. This* under the provisions of the Code of Civil Procedure, §§ 539
Pursuant to defendant’s further request, the trial judge found as matters of fact established by the evidence that plaintiff had ample opportunity for the inspection of the contract before its execution by him; that, with the exorcise of ordinary diligence, plaintiff could have discovered the discrepancy ■between defendant’s written offer and the contract; and that the plaintiff was negligent in that he failed to make such discovery. It does not, however, ■appear that in consequence of such negligence the defendant’s condition was altered in any respect, or that lie sustained any loss, or was prevented from making any gain, or that upon the reformation of the contract as he, as well as the plaintiff, intended to make it, and the return of the sum paid him in excess of the sum he expected to receive for the improvements to plaintiff’s premises, he would not now be in precisely the same condition in which he would have been had the contract originally been executed as the parties intended. In such a case plaintiff’s negligence should not be a bar to his relief, nor should the defendant be permitted to avail himself thereof to his unconscionable advantage by insisting upon the performance of a contract neither intended to make, (Savings Inst. v. Burdick, 87 N. Y. 40; Andrews v. Gillespie, 47 N. Y. 487; Kilmer v. Smith, 77 N. Y. 226,) or to retain the moneys to which he had no claim of right, and which he knew or ought to have known were paid to him under mistake, (Lawrence v. Bank, 54 N. Y. 433; Union Nat. Bank of Troy v. Sixth Nat. Bank of N. Y., 43 N. Y. 452; Mayer v. Mayor, etc., 63 N. Y. 455.)
We have considered the several exceptions to the trial judge’s rulings respecting the evidence, and urged on this appeal for reversal, but are unable to agree with counsel for appellant that they, or any one of them, present error. The judgment should be affirmed, with costs. All concur.
Code Civil Proc. § 539, provides: “A variance between an allegation in a pleading and the proof is not material, unless it has actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits. ”