51 So. 382 | Ala. | 1910
“When a writing fails to express some important element of the contract, which the parties mutually intended it should express, or expresses it differently from what they had mutually agreed it should express, and this failure or difference of expression is the result of mistake or fraud, chancery, on clear, proof, will reform the contract, to make it effective as the parties mutually intended.” — Clark v. Hart, 57 Ala. 394, and authorities there cited: Folmar v. Lehman-Durr Co., 147 Ala. 477, 41 South. 750. It is evident that the negotiations between the complainant W. B. Tomlin and the agent of the respondents from first to last contemplated an extension of Fifteenth avenue as per the change in location, through block 26; the only point of difference being as to the definiteness of the time for making said extension through said block 26, The sole or chief consideration moving the complainants to consent to the change, .and the closing of Fifteenth avenue, as it then stood, was that the change would also apply to block 26, immediately in front of their property; that they would get title to the old avenue in front of their lot, with a right to purchase the strip between the old and new avenue, under terms set
It is next insisted, that there is no mutuality as to so much of the contract as requires a conveyance of the strip, as the complainants would have the option to decline, and could not be forced to take it for the price fixed. This may be, but does not render the contract wanting in mutuality, as it must be taken in it,s entirety, and it did require the complainants to join in a consent to close that part of the old avenue through block 23, and in fact recited that they had done so. — Merritt v. Coffin, 152 Ala. 474, 44 South. 622; Pollard v. Maddox, 28 Ala. 321; Comer v. Bankhead, 70 Ala. 136.
There is no merit in the motion to dismiss the appeal. It may be true that the appeal from the decree on the demurrer to the bill could only be taken within 30 days; but the ruling can be reviewed on the appeal from the final decree. Nor are the decrees on the merits and on the report of the register so distinct and inconsistent as to bring this appeal within the influence of the case of Kelly v. Deegan, 111 Ala. 152, 20 South. 378.
The decree of the chancery conrt is affirmed.
Affirmed.