3 N.Y.S. 513 | N.Y. Sup. Ct. | 1889
This action was brought to recover damages for waste committed upon real estate by the cutting of timber thereon, and to restrain such waste. The defense was that the defendant had purchased the lands upon which the timber was cut, and had entered into the possession under a written contract; that under the agreement as made between the parties he had the right to cut the timber that' he did cut, and asked to have the written agreement reformed so as to give him that right. The referee found as facts that in the month of January, 1886, the "defendant and Jasper Stryker, the husband of the plaintiff, entered into a verbal contract, whereby the said Jas
The real question to be determined upon this appeal is whether the evidence sustains the finding of the referee to the effect that it was the intention and design of the parties in making the written agreement to embody therein the oral agreement made in January, 1886, and that through the fault of the scrivener who prepared the written contract, or from a misconception of the language used, the written agreement failed to express and contain the full agreement of the parties. The rule as stated in 3 Pom. Eq. Jur. § 1376, is that “equity has jurisdiction to reform written instruments in but two well-defined cases: First, where 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 parties thereto; and, second, where there has been a mistake of one party, accompanied by fraud or other inequitable conduct of the remaining parties. In such cases the instrument may be made to conform to the agreement or transaction entered into according to the intention of the parties.” This rule is sustained by numerous authorities, of which it will only be necessary to cite Welles v. Yates, 44 N. Y. 525; Story v. Conger, 36 N. Y. 673; Institution v. Burdick, 87 N. Y. 40. Parol evidence
It is claimed on behalf of the plaintiff that while the terms of the agreement were talked over, it was not consummated at that time, for the reason that Grant was still in possession. It further appears that subsequently the land was conveyed by Jasper Stryker to his wife, the plaintiff, and that Grant’s ■claim was disposed of, and thereupon the written contract in question was •entered into between the plaintiff and defendant. It does not appear that there was any talk between the parties at the time of entering into the written agreement in reference to the terms and conditions of the sale. The transaction was largely conducted by the plaintiff’s son, who drew the contract. Upon these facts, which we understand to be undisputed, it becomes important to irfquire as to what had actually taken place between the plaintiff’s husband and the defendant prior to entering into the written agreement, for the referee has found—and we think, properly—that it was the intention of the parties to the written agreement to embrace in the writing and carry •out the terms of the agreement as it had been previously talked over and understood. The defendant has testified that in the conversations that he had with Jasper Stryker about the purchase he stated that he could do nothing unless he could have the hemlock timber to work upon, as he should require the timber in order to make his payments upon the contract; that he was told that he could cut any of the timber except the pine, chestnut, cucumber, and oak of sufficient size for saw timber; that at a subsequent conversation to that where the terms of the contract were agreed upon, he told Stryker that he wanted to commence peeling bark, and that be was told by Stryker that he •ought to pay him on his contract at the rate of one dollar per cord for all bark peeled, and that he agreed to do so as soon as he could sell the same and get the money thereon.
The defendant is corroborated by Bragg, Colburn, Grant, and several other witnesses, and while there is a sharp conflict over the question as to whether he was to be permitted to cut the timber upon the premises not reserved, we -are inclined to the opinion that the findings of the referee are justified by the ■evidence. In the first place, the defendant was a poor man, engaged in the lumber business; had been cutting and drawing timber to the mill for the plaintiff’s husband. The complaint alleges that he was insolvent. The premises purchased were entirely unimproved, being entirely covered with timber. It was known that nothing could be produced thereon until the timber was