23 N.Y.S. 34 | N.Y. Sup. Ct. | 1893
This action was brought to obtain reformation of a written contract, and for damages for a breach thereof as reformed. The learned referee to whom the action was referred found that by the mutual mistake of the parties the contract failed to express their actual agreement, and he directed judgment for the plaintiff, reforming the contract, and for damages for the breach thereof; and the question presented for our decision is whether the evidence sustains his findings.
The defendant, Derby, was the owner of a farm in the town of Persia, Cattaraugus county, on which was a considerable quantity of hemlock and other timber. He purchased the farm of Franklin D. Locke, Esq., of Buffalo, and Mr. Locke held a purchase-money mortgage thereon of $1,900. The defendant was desirous of selling the timber on the -farm, with a view of applying the money obtained therefrom in part payment of the Locke mortgage. Plaintiff owned a portable steam sawmill, and wished to purchase the timber for the purpose of converting it into lumber, and marketing it. Negotiations were had between the parties which resulted in a verbal agreement for the sale of the timber to the plaintiff for the sum of $1,000. Plaintiff testified that, while negotiating for the purchase of the timber, he stated to the defendant that he knew what the labor of converting the timber into lumber, and marketing it, would cost, with the exception of the cost of skidding the logs to the mill, and that the defendant thereupon said that he would do, or cause to be done, that part of the labor, for one dollar per thousand, and that he told defendant, if he purchased the timber, he should have the job of skidding the logs. Plaintiff further testified that he was to have a week’s time to determine if he would make the purchase, and that at the end of the week he informed the defendant that he would take the timber, and that
To entitle the plaintiff to a judgment reforming this written instrument, it was incumbent upon him to prove, by a preponderance of clear and satisfactory evidence, that the defendant not only agreed to do the work, but that it was agreed it should be incorporated into the written contract, and that by the mutual mistake of the parties it was omitted therefrom. A person who seeks to rectify a deed on the ground of mistake must establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be made conformable continued concurrently in the minds of all parties down to the time of its execution, and also must be able to show exactly and precisely the form to which the deed ought to be brought. Bisp. Eq. § 469; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290. We think the plaintiff came far short of making such a case.' On the contrary, the preponderance of the evidence tended to establish the defendant’s contention.