29 Ind. App. 614 | Ind. Ct. App. | 1902
Appellant and appellee were partners engaged in selling groceries at retail. Prior to the commence^ ment of this action that partnership was dissolved by mutual consent, and the supposed terms of dissolution were reduced to writing, and are as follows: “Indianapolis, Ind., Sept 22, 1899. This is to certify that George Smelser and Edgar Pugh have to-day dissolved partnership, George Smelser having sold to Edgar Pugh his interest in stock of groceries, fixtures, horses, and wagons, etc., located at and known as 435 & 437 N. Roble street, Indianapolis, for the sum of $552.18, for value received, said Edgar Pugh agreeing to pay all known indebtedness of said firm.” (Signed by the parties.) Appellant sued appellee upon that contract of settlement. Issues were joined on the complaint by answer and reply. Appellee also filed a cross-complaint asking that the contract of settlement be reformed. A demurrer to the cross-complaint was overruled, and such ruling is the only error assigned. The cause proceeded to judgment against appellant.
In the cross-complaint it is averred: That appellant and appellee had been partners, and, by the terms of the partnership, were to share equally in the profits and losses; that, for some time prior to the dissolution, the business had been conducted at a loss; that the firm had become deeply involved in debt, was practically insolvent, and that, by reason of continued losses and impaired credit, the business of the partnership could no longer be carried on at a profit;
The facts stated in the cross-complaint, the truth of which is admitted by the demurrer, make a strong case for reformation, and it only remains to determine if such facts are well pleaded. We shall consider the objections to the cross-complaint urged by appellant. Counsel for appellant argue that the cross-complaint does not set out by copy the written contract upon which appellee’s cause of action is based. It is sufficient answer to this to say that the cross-complaint does not purport to rest upon a written contract, but it does set out specifically what the contract between the parties was, and avers that the written contract which is the basis of appellant’s action was the result of mutual mistake. That contract is made an exhibit to the cross-complaint, and becomes a part of it. In an action to reform a written instrument, it is necessary to set forth the terms of the original agreement, and also the agreement as reduced to writing, and point out with clearness wherein there was a mistake. Citizens Nat. Bank v. Judy, 146 Ind. 322, and authorities there cited. These requirements are complied with in the cross-complaint.
It is next suggested that the cross-complaint is bad because two dates are left blank. There is no merit in this contention, for such omission can not be reached by a demurrer but by motion to make more specific.
Appellant also contends that the facts pleaded do not show that the mistake was mutual. The established rule is that equity will reform a written contract between the contracting parties, whenever, through mutual mistake or mistake of one of the parties accompanied by fraud of the other, it does not, as reduced to writing, correctly express the agreement of the parties. Citizens Nat. Bank v. Judy, supra, and authorities there cited. There is no charge of fraud in this case, and to uphold the cross-complaint it must affirmatively state facts showing that the contract re
We have before us in the cross-complaint a clear and succinct statement of the contract as actually made, understood, and intended by the parties to be reduced to wilting, and the agreement actually reduced to writing and signed by them. The material differences between the contract as actually made and ¿greed upon, and the one signed by the parties, are clearly distinguished, and as the demurrer admits these facts the conclusion necessarily follows that the mistake was mutual. See Keister v. Myers, 115 Ind. 312; Roszelle v. Roszelle, 109 Ind. 354, 356; Baker v. Pyatt, 108 Ind. 61, 65.
It is further contended that the word “mistake,” as used by the pleader, is the mere statement of a conclusion and not the statement of a fact. This contention is not well grounded and finds no support in the authorities. The next objection urged is that there are contradictory statements in the cross-complaint. We are unable to find any such statements that could be reached by demurrer.
Appellant next insists that appellee is not entitled to be relieved from the contract signed by him, on account of his own negligence in failing to read it before signing it. We can not believe that any question of negligence is presented by the facts pleaded. It is said in Pomeroy’s Eq. Jurisp., §1376: “Equity has jurisdiction to reform written instruments in but two well-defined cases: (1) When there is a mutual mistake,- — that is, where there has been a meeting of minds, — an agreement actually entered into, but the contract, deed, settlement, or other instrument, in its written form, does not express what was really intended by the
In the case of Walden v. Skinner, 101 U. S. 577, 25 L. Ed. 963, it was said: “That where an instrument is drawn and executed, that professes or is intended to carry into execution an agreement, which is in writing or by parol, previously made between the parties, but. which by mistake of the draughtsman, either as to fact or law, does not fulfil or which violates the manifest intention of the parties to the agreement, equity will correct the mistake so as to produce a conformity of the instrument to the agreement, the reason of the rule being that the execution of agreements fairly and legally made is one of the peculiar branches of equity jurisdiction, and if the instrument intended to execute the agreement be from any cause insufficient for that purpose, the agreement remains as much unexecuted as if the party had refused altogether to comply with his engagement, and a court of equity will, in the exercise of its acknowledged jurisdiction, afford relief in the one case as well as in the other, by compelling the delinquent party to perforin his undertaking according to the terms of it and the manifest intention of the párties.” The case made by appellee in his cross-complaint comes squarely within the rule declared by the Supreme Court of the United States, in the case from which we have quoted.
Counsel for appellant next urge that the cross-complaint is defective because it does not show how the mistake occurred. A careful reading of the cross-complaint dissipates this objection. As to what the contract actually was, is set
Tbe mistake charged in tbe cross-complaint was not one of law, as next contended by tbe appellant, but one of fact. Tbe contract relied upon by appellee is consistent with tbe situation and surroundings of tbe parties, while tbe contract relied upon by appellant, in tbe light of tbe facts pleaded, is both unconscionable and unreasonable. Judgment affirmed.