164 P. 531 | Mont. | 1917
delivered the opinion of the court.
This action was brought to recover upon a promissory note dated December 26, 1897. The defendant prevailed in the lower court, and plaintiff has appealed.
The findings made by the trial court follow substantially the allegations contained in the defendant’s second defense, and the
“The word ‘renewed’ or ‘renewal,’ as applied to promissory notes in commercial and legal parlance, means something more than the substitution of another obligation for the old one. It means to re-establish a particular contract for another period of time, to restore to its former condition an obligation on which the time of payment has been extended.” (7 Words and Phrases, 6084.)
“The word ‘renew,’ in a lease providing that the lessee shall have the right to renew the lease, imports a giving of a new lease like the old one, with the same terms, stipulations, and covenants.” (4 Words and Phrases, 2d series, 267; Leavitt v. Mayhel, 203 Mass. 506, 133 Am. St. Rep. 323, 89 N. E. 1056.)
It may be conceded that, if plaintiff and defendant mutually agreed that the note sued upon should be in the same form (excepting amount and date of payment) as the 1894 note, which was produced in evidence, and if the objectionable clause was inserted only through the mistake or inadvertence of the scrivener, there is not presented a mutual mistake on the part of plaintiff and defendant according to the strict legal significance of those terms, though such a mistake is frequently referred to as a mutual mistake by the authorities. “The phrase ‘a mutual mistake’ as used in equity, means a mistake common to all the parties to a written contract or instrument, and it usually relates to a mistake concerning the contents or the legal effect of the contract or instrument.” (5 Words and Phrases, 4650; Page v. Higgins, 150 Mass. 27, 5 L. R. A. 152, 22 N. E. 63.)
It may be that the only issue presented where it is claimed the mistake occurred through the inadvertence of the scrivener is:
But, though, this case does not present a technical mutual mistake, it does present a mistake which a court of equity will not hesitate to correct to the end that the writing may express the agreement of the parties. (Born v. Schrenkeisen, 110 N. Y. 55, 17 N. E. 339; West v. Suda, 69 Conn. 60, 36 Atl. 1015; 34 Cyc. 910.)
We have examined the other assignments, but do not think they merit special consideration.
The judgment is affirmed.
Affirmed.