181 Ky. 646 | Ky. Ct. App. | 1918
Opinion of the Court by
Reversing.
On June 13, 1911, C. H. Moore, Jr., and Mary B. Suttle and husband conveyed to J. Dan Stark the south half of a lot of ground on College street, in Bowling
After paying Mrs. Suttle the sum of $40.00 per month for several years, J. Dan Stark declined to pay her anything in excess of $25.00 per month. Thereupon Mrs. Suttle brought this suit to collect the past due payments and to enforce her lien. The defendant filed an answer, counterclaim and set off. In the first paragraph he admitted and denied certain allegations of the petitiom The second paragraph is, in part, as follows:
“Defendant, for further answer, counterclaim and set off says that at the time of the execution and delivery1 of said deed and said contract the plaintiff represented' to the defendant that she had an interest in and to the property known as the Moore property and the northeast one-half thereof, and that the said Chas. H. Moore had agreed to pay to her the sum of $25.UU per month dúring her natural life upon some agreement between the said Chas. H. Moore and. the plaintiff, either verbal or written, and at said time this defendant agreed between the parties that he would and did assume to pay and carry out said agreement of Chas. H. Moore with plaintiff to pay her said sum of $25.00 per month out of the rents and profits of said property for and during her natural life, and that by an error, oversight and mistake, and without any consideration whatsoever, it was inserted in said contract that the defendant should pay to the plaintiff the sum of $40.00 per month when in fact the positive contract and agreement was that he would assume and agree to pay to her only the agreement of the said Chas. H. Moore, or the sum of $25.00 per month, and defendant avers and charges that thereafter by mistake, error and oversight he continued to pay to the plaintiff
To this answer and counterclaim a demurrer was sustained and the answer and counterclaim dismissed. Thereupon judgment was rendered for the past due payments and the property ordered sold. The defendant appeals.
Equity will reform a written contract when by reason of mutual mistake of the parties it does not express their true agreement. In pleading a- cause in reformation it is necessary to allege in clear and concise language the grounds of reformation, the agreement actually made and the agreement which the parties intended to make. Where the ground of reformation is mutual mistake, it is not necessary to allege mutual mistake in terms, but a pleading is generally regarded as sufficient which alleges facts from which a mutual mistake may be readily inferred. Lindenberger v. Rowland, 158 Ky. 760, 166 S. W. 242. Applying these principles to the case under consideration, we find that the answer and counterclaim alleges in substance that the true agreement between the parties was that the defendant was to pay plaintiff $25.00 per month, whereas, by error, oversight and mistake, the contract provided that he should pay plaintiff $40.00 per month. If it be true that the parties merely intended to contract for the payment of $25.00 per month but by mistake entered into a contract providing for the payment of $40.00 per month, then the mistake was mutual. We, therefore, conclude that mutual mistake may be readily inferred from the facts alleged and che answer and counterclaim is therefore sufficient. The sufficiency of the answer and counterclaim is not affected by the defendant’s failure to state when he discovered the mistake, since that feature of the case bears only on the questions of limitation and laches, which are not raised by the demurrer; nor is the sufficiency of the pleading affected by the fact that defendant continued to make the
Judgment reversed and cause remanded for proceedings consistent with this opinion.