197 Mich. 399 | Mich. | 1917
The bill of complaint in this case was filed for the purpose of obtaining reformation of a land contract made between the plaintiffs and the defendant. The plaintiffs have appealed from a decree dismissing the bill. It was made to appear that in.
“Muskegon, Michigan, August 19, 1916.
“In consideration of $500 paid on account by H. M. Rouse to Paul J. Schlossman Company, the receipt of which is hereby acknowledged, the Paul J. Schlossman Company agrees to sell to H. M. Rouse and said Rouse agrees to buy the westerly 22 feet, thereabouts, of lot 10, block 310, of the revised plat of the city of Muskegon, being the building and ground now occupied by said Rouse for a drug store; balance of purchase price to be paid as follows; $4,500 on delivery of the contract of sale, $5,000 in 90 days thereafter, and $5,000 per year until purchase price of $35,000 is fully paid, with interest on deferred payments at 5 per cent, per annum.
“This agreement is made contingent on the purchase*401 of the entire lot 10 of block 310 by the Paul J. Schlossman Company.
[Signed] “Paul J. Schlossman Co.
“H. M. Rouse.”
The formal contract was to be drawn by attorneys representing the parties, but before it had been completed the defendant attempted to withdraw from the agreement and sent a notice to Mr. Smith, one of the plaintiffs, of his intention so to do. The plaintiffs at once brought suit upon the contract and garnished defendant’s bank account. The formal contract as agreed upon was then completed and tendered to the defendant after the suit had been begun, and he finally signed it and made the first payment thereon. In it the property conveyed is described as follows:
“The westerly twenty-two (22) feet of lot ten (10), block three hundred and ten (310), according to the revised plat of the city of Muskegon, approved April 9, 1903, together with the building situated thereon, with the privileges and appurtenances thereunto belonging.”
Before the final contract was sighed the defendant measured the premises and ascertained that the westerly 22 feet of lot 10, which he was purchasing from the plaintiffs, included more than the land occupied by the drug store, because by actual measurement he found the drug store to be only 20 feet in width. The plaintiffs claim that they were not aware of this, and did not discover that the drug store was only 20 feet in width until the final contract had been signed, and they thereupon prepared a new contract, correcting the mistake, and tendered it to the defendant for execution. This he declined to do, and thereupon this bill was filed.
It is the contention of counsel for the plaintiffs that it was the intention of the parties to this transaction to sell nothing more than the drug store, and thus the
“I remember, during the time that we were negotiating with Rouse and trying to persuade him to buy this property, the westerly 22 feet of lot 10, telling him that Judge Clink claimed the property on Western avenue along there was worth $2,000 a foot.”
The defendant testified as follows, in reference to this conversation:
“He made some reference to Judge Clink at one time after this contract of August 19th had been signed. I think it was after I had sent this note of August 25th, in which I wanted to drop the whole matter. He was passing along the street. I stood out in front, and he made the remark that Mr. Clink, Judge Clink, said that real estate along the avenue was worth $2,000 a foot, and then he figured it out to me that the difference between $85,000 and $44,000 was a nice little sum to make in a deal.
“Q. How many feet did you understand that they were proposing to sell you ?
“A. I understood one-third of the block there. At the time I agreed to pay $35,000 I knew what the Schlossman Company were paying for the entire lot. I think about that time; just at that time, I don’t know. He had a contract.”
We are of the opinion that what was intended to be done, according to the understanding of the parties, was that plaintiffs were to sell the defendant 22 feet fronting on Western avenue, because in the initiatory agreement, and also in the formal contract, both of which were prepared by an attorney for the plaintiffs,
Moreover, conceding that there was a mistake, it was not a mutual mistake, because it is conceded that defendant knew the exact width of the drug store to be only 20 feet at the time the contract was signed. Before a contract will be reformed because of a mistake in drafting the same, it must be shown by satisfactory evidence that the alleged mistake was mutual and common to both parties in interest. West v. Mahaney, 86 Mich. 121 (48 N. W. 709); Burns v. Caskey, 100 Mich. 94 (58 N. W. 642); Eberle v. Heaton, 124 Mich. 205 (82 N. W. 820); Stapleton v. Schaffer, 146 Mich. 346 (109 N. W. 665); Miles v. Shreve, 179 Mich. 679 (146 N. W. 374).
The decree of the lower court, dismissing the bill, is affirmed, with costs to the defendant.