Pickard v. Farmers & Merchants Bank of Richland Center, Wisconsin, 171 Wis. 167

Pickard v. Farmers & Merchants Bank of Richland Center, Wisconsin

171 Wis. 167 | Wis. | 1920

Lead Opinion

Siebecker, J.

In cases of reformation of written instruments for mistake the evidence must clearly show the terms of the oral agreement and that the writings sought to •be so reformed do not express such oral agreement but a different one. Harter v. Christoph, 32 Wis. 245, and cases cited; Green Bay & M. C. Co. v. Hewitt, 62 Wis. 316, 21 N. W. 216, 22 N. W. 588.

There is no disputé in the evidence but that it was agreed between the plaintiff Charles A. Pickard and the officers of the bank, at the time the land contract was executed in August, 1917, that plaintiff applied for a loan from the bank for $11,500, if the bank officers upon inspection approved of the proffered mortgage security, and that the bank’s officers thereafter informed plaintiff that the security was satisfactory and that he could have the loan. The bank *170claims that this agreement was "modified-on February 2, 1918, to the effect of increasing the amount of the loan to $12,500. This the plaintiff denies. The conflicting evidence on this point sustains the trial court’s conclusion that it clearly appeared that the amount of the loan originally agreed upon was not changed by the parties on February 2d to $12,500. The terms of the oral agreement were thus established, and it is understood that the notes and mortgage do not express it. The court’s finding that the erroneous amount of the loan, namely $12,500,.was inserted in the notes and mortgage through the error of the cashier, Mr. Fiske, is abundantly supported by the testimony. Upon this state of facts of the case plaintiffs are entitled to a reformation of the notes and mortgage unless they are precluded from such relief by their negligence in executing the notes and mortgage in the form presented to them without informing themselves of their actual contents. It appears that Mr. Fiske was requested and instructed by plaintiff to draw up the notes and, mortgage for the loan. The facts and circumstances disclose that the plaintiff did what is common in a transaction of this nature, namely, that he and his wife relied upon their banker to draw up these documents correctly and that they expressed the agreements which were well understood between them, and that they relied upon him for their being correct as presented to them and that the contents of the writings contained the terms of the oral agreements. Under these facts and circumstances the omission of plaintiffs to read the notes and mortgage” before signing them is sufficiently explained and excused, and the plaintiffs were justified in signing them without reading them to ascertain whether they correctly expressed the oral agreement for the loan. Silbar v. Ryder, 63 Wis. 106, 23 N. W. 106; Wisconsin M. & F. Ins. Co. Bank v. Mann, 100 Wis. 596, 76 N. W. 777; Loyd v. Phillips, 123 Wis. 627, 630, 101 N. W. 1092.

By the Court. — The judgment is affirmed.

Dissenting Opinion

Eschweiler, J.

(dissenting). The oral agreement between the parties for a loan was in August, 1917. When they met again in the following February the plaintiffs relied entirely upon their supposition that the cashier of the bank would remember what took place in August and do not at such time mention that the loan is to be $11,500 rather than the $12,500, an amount which was a subject of conversation in the preceding August. This evidently was the plaintiffs’ one transaction of such kind or magnitude. It is fáir to assume that the bank had many similar transactions with others in the interim. That there was no actual fraud perpetrated by the cashier in having the instruments drawn with the incorrect amount, is clear beyond question. That he should not have the transaction of August clearly in mind and therefore make the mistake, is quite natural and excusable. The plaintiffs, however, in a transaction which was to them unusual and of much importance, did not do that which this court has repeatedly declared it is necessary and proper that he who binds himself by his signature to a written instrument is bound to do, viz. know its contents at the time of subscribing it in the absence of improper means by the other to prevent. There were absolutely no such means used in this case. There was no inquiry by the plaintiffs as to the contents of this document and the several notes. Plaintiffs were devoting their entire day'to the transaction and had ample time and opportunity to look and read and thus have prevented what is probably a loss of $1,000.

To me it is clear that this loss-should fall upon the more careless of the two parties concerned, and there was such a plain, inexcusable want of ordinary care on the part of plaintiffs as to place the loss upon them rather than upon the bank. Dowagiac M. Co. v. Schroeder, 108 Wis. 109, 111, 84 N. W. 14; Standard M. Co. v. Slot, 121 Wis. 14, 23, 98 N. W. 923; Kruse v. Koelzer, 124 Wis. 536, 541, 102 N. W. 1072; Grant M. Co. v. Abbot, 142 Wis. 279, 290, 124 N. W. 264; Eland State Bank v. Mass. B. & I. Co. 165 Wis. 493, 498, 162 N. W. 662.