89 Va. 384 | Va. | 1892
delivered the opinion of the court.
It is conceded by the learned counsel for the apjiellees, who
There is no dispute concerning the law iii this cause, both sides concurring ; and it is well settled that such a mistake may be corrected, and the deed reformed in accordance with the true agreement between the parties. In this cause we will briefly consider the evidence. It is claimed by the appellant company that the purchase was of the whole of the vendor’s mineral interests, the vendor reserving the lead and zinc; and its officers making the purchase so testify. On the other hand, Palmer says that he sold only the iron interest by the contract, and made no mistake, and that the deed, as amended by him, sets forth the true agreement, and that there was no other agreement, and gives his deposition to this effect; that neither the company nor any of its agents ever suggested anything of any other purchase than iron ore until the second payment became due—two years afterwards; that the contract was never reduced to writing, and that he never heard, before the time mentioned, of any such alleged purchase of any interest other than the iron ore. The appellant, on the other hand, files—and proves the handwriting to be Palmer’s—a letter to the following effect:
“ John S. Kennedy, Esq., Pulaski County, Va. [Kennedy was the general manager of the company] :
“ Dear Sir,—On my return home this evening I find your telegram—viz. : ' Pulaski accepts option at your figures. Directors authorize me to offer one third down. Will you accept these terms ? ’ I do not understand this. Mr. George T. Mills came to Emory, Ya., on last Tuesday, and accepted my proposition—viz., $20,000 for my interest in the minerals on the Sayers tract, reserving to myself all of the lead and zinc—$10,000 cash down ; the balance in one and two years, $5,000 each, with interest, payable annually, on the deferred payments. I supposed and believed that the purchase was for your company, 1 wrote to Mr. J. E. Moore, attorney, at Mr. Mills’ suggestion, to make the deed, and send it for my signature. Please to confer with Mr. Mills.
“ Yours, &c.,
“ Geo. W. Palmer.”
And in another letter, dated October 4, 1887, to the same person, addressing him as “ general manager,” he says, among other things : “ I am willing to carry out the trade as I promised, but must have the cash payment, and hope that you will send me the check for the same on receipt of this.” This letter, first written within a week of the agreement, sets forth the agreement circumstantially as it is claimed to be by the appellant. It is at variance, in the particulars claimed by the appellant, with the deed. The deed was written shortly after the agreement was made, and is so done as to exclude the limestone on the land, and makes no reservation of the lead and zinc, none being necessary if the sale is limited to the iron ore. This change is material, and greatly adverse to the interest of the vendee, as admitted by Palmer at the time. It was probably a mutual mistake, caused by the circumstance that the learned gentleman who was written to by the vendor
Degree reversed.