36 Mich. 388 | Mich. | 1877
The purpose of this suit is to obtain the reformation of a contract into which it is alleged an error has crept through mistake.
‘ The contract bears date April 5, 1812. To an understanding of the alleged mistake it will be necessary to state the facts respecting which the parties were then in negotiation.
The defendant John Shea was the owner of three parcels of land in Calhoun county, the value of which is estimated at from twelve to fourteen thousand dollars, and which were encumbered to the amount of about eleven thousand dollars by mortgages, known as the Reed mortgage,
The steps leading to further negotiations between the parties to this suit are not very fully explained, but it will be sufficient to state, that previous to April 5, 1872, it had been ascertained that one Rulifson would loan to Shea four thousand dollars or thereabouts, and take security therefor on the lands not bargained to Bly, provided the incumbrances were released and the amount owing to the state paid. This sum would enable Shea to pay off the Stringer mortgage and leave a surplus, the amount .of which was somewhat uncertain inasmuch as the exact amount required to pay off the Stringer mortgage was not known. It seems to have been supposed that he would submit to some discount in order to obtain his money. The eight thousand dollars which Bly was to pay for the land bargained for by him would fall short a few hundred dollars of paying all the demands owned or controlled by complainant.
“This agreement, .made and entered into this fifth day of April, A. D. 1872, by and between Abiel T. Vary, of the township of Marshall, county of Calhoun, and state of Michigan, of the one part, and John Shea and Frances E. Shea, his wife, of the same place, of the other part, witnessed:, that whereas said John Shea and Frances E. Shea have this day made and executed under their hands and seals a certain indenture of mortgage to one Harmon D. Eulifson on the following described lands, situate in the county of Calhoun, and state of Michigan, described as follows, to-wit: the northwest quarter of the southwest quarter and the southwest quarter of the southwest quarter of section twenty-nine and the northwest fractional quarter of the northwest quarter, north of the Kalamazoo river, of section thirty-two, all being in township two south of range six west, together forming one parcel, and containing eighty-four and twenty-seven one-hundredths acres of land more or less, which said mortgage is given to secure the payment to said Harmon D. Eulifson by said John Shea and Frances E. Shea of the sum of four thousand and thirty-six dollars and fifty cents at the expiration of three years from the date thereof, with interest at the rate of ten per cent, per annum, payable semi-annually until said principal sum be paid: Provided always, That any part of said principal sum may be paid at any time before due in sums not less than twenty-five dollars at any one time] all sums, both prin
“Now, therefore, in consideration of the premises, the said Abiel T. Vary doth covenant and agree, to and with the said John Shea and Frances E. Shea, that he will, on the best and most advantageous terms, pay and satisfy and cause to be discharged of record a certain indenture of mortgage,bearing date on or about the 3d day of November, A. D. 1866, made and executed by said John Shea and Frances E. Shea to one William Stringer, and recorded in the office of the register of deeds for the said county of Calhoun, on book LL of mortgages, on page 741, and that in case the amount of said money paid for the discharge of said Stringer mortgage, including expenses, shall be less than said sum of four thousand and thirty-six dollars and fifty cents, he will endorse or cause to be endorsed as paid upon said Rulifson mortgage the -surplus thereof to the amount of thirty-six dollars and fifty cents, and will pay to said John Shea and Frances E. Shea the balance of said sum of four thousand and thirty-six dollars and fifty cents, if any, after deducting such amount so paid for the discharge' of said Stringer mortgage and necessary expenses, and the sum of three hundred and -sixty dollars, being the amount to be paid to the state of Michigan on said certificate, which said sum of three hundred and -sixty dollars is due the said state and was included in said mortgage to secure the payment thereof to said state of Michigan, and the amount so endorsed on said mortgage in cash;1 and also that so soon- as said Rulifson mortgage shall be fully paid and satisfied, he will, by a sufficient instrument in writing, under his hand and seal, duly executed, reassign, transfer and set over to said John*394 Shea and Frances E. Shea the said certificate number 644 of sale of university land, and that he will not, so long - as said John Shea and Frances E. Shea perform the conditions of said Eulifson mortgage, assign said certificate to any other person or persons, and that said John Shea and Frances E. Shea may, so long as they shall perform the conditions of said Eulifson mortgage, retain possession of and occupy the land mentioned in said certificate.
“And in case said John Shea and Frances E. Shea shall fail to perform the conditions of said Eulifson mortgage, then said certificate shall be sold in the manner provided by law for the foreclosure of mortgages and the proceeds thereof applied to the payment of said Eulifson mortgage.
“It is further agreed that in case said John Shea and Frances E. Shea shall faithfully and in due season pay to the proper officer all interest due and to become due on said certificate, in that case the interest on the sum of three hundred and sixty dollars, parcel of said sum of four thousand and thirty-six dollars and fifty cents, secured by said Eulifson mortgage, as aforesaid, shall be reckoned at seven per cent, per annum instead of ten per cent., as in said mortgage expressed.”
This is the contract which complainant desired should be executed, and with the usual attestation clause added, it was drawn up under his direction for signatures of the parties, and its execution by defendants urged. If we direct our attention to the provision contained in it for the disposition of the surplus that would remain of the moneys to be obtained by means of the Eulifson mortgage, after the Stringer mortgage should be paid off, and the- amount owing to the state satisfied, it will be manifest that it very plainly and distinctly provides that such surplus shall be paid to the defendants. It is important to bear this in mind, since the mistake which it is claimed crept into the contract relates exclusively to the disposition of this surplus.
Three days later further interviews were had between the parties,- complainant seeking the first at an unusual hour in
“It is further agreed that said Abiel T. Vary shall discharge, or cause to be discharged, from said lands, and from the lands recently sold by said John Shea and Frances E. Shea to one Caleb O. Bly, all other mortgages, judgments or attachments, at the expense [as to fees of the register of Calhoun county] of John Shea aforesaid.
“The provisions of these presents are declared binding on the respective heirs, executors, administrators and assigns of each of the respective parties hereto.”
"We are given to understand by complainant’s evidence that the proposed contract with this addition was understood by him at the time to be satisfactory to the Sheas, and that the change effected in it by the addition had overcome their objections as he then supposed. At the same time he insists that under the contract as thus amended he would be entitled to exact from the Sheas the whole amount of all the incumbrances, and that his undertaking to discharge them all at “the expense” of John Shea only obligated him to do so on complete payment being received. And as the Eulifson moneys would be in his hands, his construction of the paper is, that he would have had a right to satisfy the balance that should remain on the incumbrances
Now as the Sheas had refused to sign the contract as first drawn, and it is manifest from all the evidence that they had been bargaining for concessions and that complainant supposed he had changed the proposed contract in their interest, it is pertinent to inquire in what particular they were bettered by this change. But the slightest consideration of this additional provision will convince one that, if we accept the construction of complainant, the addition' effected no important change in the paper. What did it bind complainant to do? Merely this, as he claims: to ■cause the incumbrances he owned or controlled to be discharged on receiving the amount thereof and the expenses attending the discharge. But this he would have been e'bliged to do without any such written undertaking, and there is not a man of sense in the community who does not understand that he has a legal right to require a discharge •of his mortgages when he satisfies them. Indeed, the statute imposes a penalty on the owner of a mortgage who refuses to discharge it on demand when satisfaction is made, :and permits the mortgagor to recover the penalty for his own use. — Comp. L., § 4246. It is, therefore, to our' minds incredible that the Sheas should have been for two days bargaining for a right which they must have known they possessed already, or that complainant should have ■supposed he was yielding any thing in conceding what he must have'been perfectly aware he could not refuse.
Defendants, on the other hand, claim that what they were bargaining for was a discharge of the incumbrances controlled by complainant, without further payment after the Bly moneys were applied. In this view they had something tangible and important to negotiate for, and they were satisfied with the contract as amended, except that as the matter of expense in causing the incumbrances to be discharged was in no manner restricted, they feared they might be sub
To account for making the Rulifson mortgage larger than was necessary to obtain moneys sufficient to pay off all the claims, defendants introduce evidence to show that a part of the inducement on their part to enter into the contract was the obtaining money for their own use in building on the land they would retain. They also suggest reasons why complainant was led to assent to a discharge of the incumbrances without receiving full satisfaction, and countervailing reasons are suggested in his behalf. We need not enter upon an examination of these reasons, though it is worthy of notice that Stringer, whose mortgage was prior to all the others except one, consented to a deduction of over two hundred dollars, receiving twenty-seven' hundred dollars in full satisfaction. This left in complainant’s hands, after the state was paid, over nine hundred dollars, two hundred and ten dollars of which he has paid to defendants, and the rest retained.
We have considered this case with care and cannot accept the construction put by complainant on the contract, as it was drawn before the interlineation was made. In the con
It was said in Youell v. Allen, 18 Mich., 107, 109, that the evidence of mistake in a written contract, on which the court should act in giving relief, ought to be so clear as to establish the fact beyond cavil. Especially should this be the case when the party setting up the mistake has had the contract prepared by his own professional adviser, and apparently with care and deliberation. No such satisfactory evidence is found in this case. On the contrary, we think the evidence preponderates in favor of the defense, and that the construction of the contract as complainant would have it would not be what he insists was agreed .upon.
This conclusion requires a reversal' of the decree, and it must be reversed, with costs, and the bill dismissed. Defendants ask a decree in their favor for the moneys now in