127 Mo. App. 625 | Mo. Ct. App. | 1908
The plaintiff bases his cause of action on the following written agreement:
“St. Joseph, Mo., Nov. 8th, 1905.
“This agreement entered into on this date, witnesseth: That J. I. Redding and Badger Lumber Co., has entered into the following agreement, to wit:
“In the event of the South St. Joseph Loan Association (M. C. Powell, Agt.) making a loan to Joseph W. Graham of $1,800, and also to Samuel E. Hahn of $1,-800, ($3,600) in all, and in case said loans are paid to said Badger Lumber Co. in full, then the said Badger Lumber Co., is to pay to said J. I. Redding the sum of $1,000 (payment in full for lots 5 and 8, Block 1, Red-ding’s Addition).
“This agreement also witnesseth: That said Badger Lumber Co. has this day advanced to said Redding the sum of $500 as a payment on paving bill against
“J. I. Eedding,
“Badger Lumber Co.,
By J. L. Pope, Mgr.”
The petition alleges that the defendant is indebted to the plaintiff in the sum of $500 as provided by said instrument which the defendant has failed and refused to pay.
The defendant admits the execution of the writing sued on but sets up as a defense that it did not express the true contract as entered into between the parties. In order to understand the issue in the case it will be necessary to state a few of the general facts. On and prior to the 8th of November, 1905, the plaintiff was the owner of several lots in Block one (1) Bedding’s Addition to the city of St. Joseph. On said date he was negotiating to sell two of these lots, one to a man by the name of Graham and one to a man by the name of Hahn, who were desirous of erecting buildings on said lots but did not have the money for that purpose. The South St. Joseph Loan Association was willing to loan sufficient money to build the respective houses but would not do so unless certain loans on the lots for taxes and improvements were first discharged. The defendant agreed to discharge said indebtedness as will be seen by the contract, aforesaid.
The evidence shows that the estimated cost of each of said buildings was $1,300 which made a total cost of $2,600 for that purpose. The loan association
It is the settled law that to reform a written instrument the mistake must be mutual and not unilateral
There are exceptions to the rule that a court will not correct unilateral mistake in a written contract and that is where one party to a contract has by some fraud induced the other party to make the mistake, but as there was no evidence of fraud the question is not presented in this case. The only question then, was the mistake mutual.
The contract in question was written by Mr. Pope the defendant’s manager. He testified that there was a mistake, that the agreement was that the plaintiff was to have out of said sum of $3,600 after the payment of said $500 which had been advanced by defendant and the cost of work and material, what was left over. In this he is supported by witnesses, Sidney L. Stout, Alfred Guy, A. H. Walmsley and A. E. Thornton. Witness Stout was present and heard the agreement made. Other witnesses testified that the plaintiff told them that he was to have what was left over of the $3,600 after paying said $500, cost of doing work and the material. And it was also further shown that the sum mentioned of $1,300 for the erection of each of said buildings was not a fixed sum but an estimated cost for such erection.
The defendant is almost unsupported in his evidence that' there was no mistake made in the writing of the contract. It seems to us that the defendant’s theory of the case was supported by a great preponderance of the evidence and it was rather convincing that a mutual mistake had been made. Besides the investigation of the record will show that plaintiff’s answers to certain questions put to him on cross examination were not as