89 Neb. 176 | Neb. | 1911
The petition alleges substantially: That the defendant the Monitor Specialty Company is a Nebraska corporation; that on February 18, 1908, said defendant was adjudged a bankrupt, and defendant Abel Y. Shotwell was appointed trustee in bankruptcy of its estate; that during all of the times mentioned in the petition defendant D. G. Walker was the president and defendant M. J. Ramaekers the secretary and treasurer of the corporation; that on November 14, 1907, the defendant corporation made and executed three promissory notes, one for $300 due on or before December 14 after date, one for $300 due on or before December 24 after date, and the third for $202.90 due on or before January 14 after date. These notes were all alike in form, payable to the order of “ourselves,” and signed “The Monitor Specialty Co., by D. G. Walker, President, by M. J. Ramaekers, Sec’y & Treas.” Each note was indorsed upon the back as follows: “D. G. Walker. M. J. Ramaekers.” That after the notes were so signed and indorsed “all of said defendants for a valuable consideration delivered said notes to these plaintiffs.” That at the time of the execution and delivery of the notes “it was the intention of the defendants to execute to these plaintiffs valid and enforceable promissory notes aggregating said sum of $802.90, but that at said time said defend-. ant the Monitor Specialty Company failed to indorse said notes, by reason of which failure to indorse said notes these plaintiffs are unable to enforce same against said defendants, and will be unable to enforce same unless this court shall require said defendant the Monitor Specialty Company to indorse same. * * * That at the time of the execution and delivery of said promissory notes, as herein set forth, it was agreed and understood that said notes should be indorsed by the defendant the Monitor Specialty Company, but that through inadvertence and mistake said defendant the Monitor Specialty Company failed and omitted to indorse said notes, and said defend
The prayer of the petition is that the defendants the Monitor Specialty Company and D. G- Walker, as president, and M. J. Ramaekers, as secretary and treasurer, and Abel Y. Shotwell, as trustee in bankruptcy, be required forthwith to indorse said notes in the name of the Monitor Specialty Company as of the date of November 14, 1907, by writing across the back of said note the name of said “The Monitor Specialty Co., by D. G. Walker, President, by M. J. Ramaekers, Secretary and Treasurer, and by Abel V. Shotwell, Trustee in Bankruptcy of the estate of said The Monitor Specialty Co.and that plaintiffs recover judgment against the defendants the Monitor. Specialty Company, D. G. Walker, and M. J. Ramaekers for the amount of said notes and interest.
The answer admits the corporate capacity of defendant the Monitor Specialty Company; that defendant Shotwell is trustee in bankruptcy of the estate of said bankrupt; that defendant the Monitor Specialty Company is indebted to plaintiffs “in the sum of about $800, but on open account, less certain dividends paid thereon,” and denies
At the opening of the trial defendant objected to the introduction of any evidence on the part of plaintiffs, “for the reason that the petition filed by said plaintiff does not state facts sufficient to constitute a cause of action; and for the reason that several causes of action in said petition are improperly joined.” This objection was overruled, which ruling is now assigned as error. The objection that several causes of action were improperly joined is not discussed in the briefs. It will therefore be treated as abandoned and the objection to the sufficiency of the petition alone considered. The defendant contends that, in order to obtain the reformation of a written' instrument, the right to such reformation must be established by evidence which is “clear, convincing, satisfactory, specific, and free from reasonable controversy; and that complainant was free from negligence,” and that, if that degree of proof is required, the petition, upon which the action is based, should allege the facts with equal clearness and certainty. We think defendant has stated the rule a little more strongly than it has ever been applied in this court; yet we concede that his contention is substantially correct. Our understanding, however, of the clearness and certainty of allegation and proof necessary to. sustain a suit for reformation of a written instrument is that it must be sufficient to satisfy the mind that the contract as written is not the contract intended by the parties, and that the error or deficiency therein is the result of a mutual mistake of law or fact on the part of the parties to such contract. Does this petition meet that requirement? Let us see. It alleges that at the time of the execution and delivery of the notes in controversy “it was the intention of
The petition further alleges that at the time of the execution and delivery of the notes “it was agreed and understood that said notes should be indorsed by the defendant the Monitor Specialty Company, but that through inadvertence and mistake said defendant the Monitor Specialty Company failed and omitted to indorse said notes.” If it was the agreement that the notes which were made payable to “ourselves” were to be indorsed by 'the maker, the Monitor Specialty Company, that agreement, if carried out, would have made the notes “valid and enforceable.” They were not so indorsed, the petition alleges, “through inadvertence and mistake.” We think this allegation was sufficient. We therefore hold that the petition stated a cause of action.
The next point urged is that the decree and judgment of the court are against the weight of evidence, and that the court erred in overruling defendant’s motion, upon plaintiffs’ rest, for a dismissal of the action and in entering judgment for plaintiffs. The evidence shows that at the time the notes were drawn President Walker and Secretary Ramaekers resided at Lindsay, Nebraska, which place appears to have been the home office of the defendant corporation. The company at that time maintained an office in Omaha, of which one Charles E. Charnquist was the manager. On the day the notes were written, one A. K. Cardoza, a representative of plaintiffs, called upon Mr.
The testimony of Thomas D. Crane is to the effect that lie is one of the attorneys for plaintiffs; that on December 21, 1907, his firm received the notes in question from plaintiffs; that within two or three days thereafter he called upon Mr. Charnquist in relation to them; that he had a number of conversations with Mr. Charnquist, and that he, Charnquist, never in any of those conversations said anything about the alleged invalidity of the notes; that, when requested to make payment, lie said that they were getting ready to send out statements to their customers, and that along about January 10 their remittances would be coming in, “and that these notes would be settled as soon as possible thereafter.” Upon one occasion Charnquist called at the witness’s office, when the matter was again discussed, and he was told by Mr. Crane that plaintiffs were urging them to bring suit unless the notes were paid, and that he also referred to
It will thus be seen that from the time these notes were signed and delivered to plaintiffs the defendants and Charnquist all treated them as valid in all respects, and never once intimated that they entertained any thought of their invalidity. It was not until counsel for plaintiffs brought suit upon the notes in the county court that this claim was made. It would seem that defendants interposed a demurrer in that court. Mr. Crane testified that the defendants’ attorney informed his partner, in the presence of the witness, the grounds of his demurrer, stating that it was because the notes were informal and made payable to the order of “ourselves” and not indorsed by the Monitor Specialty Company, that thereupon counsel dismissed the action in the county court without prejudice and commenced the present suit.
To our minds the proof meets every condition insisted upon by defendants. .We think it established beyond reasonable doubt that at the time these notes were signed and delivered defendants thought they were giving, and plaintiffs thought they were receiving, valid notes for the indebtedness due from defendants to plaintiffs, and that the failure upon the part of defendant corporation to indorse the notes was the result of either inadvertence or mistake. In the face of this record, it would be a travesty upon justice to permit defendant Ramaekers to escape his just liability upon these notes, which could only be done upon the theory that he, the secretary and treasurer of defendant company, when he indorsed the notes individually and sent them to plaintiffs, knew that the notes
The judgment of the district court is right, and it is
Affirmed.