76 Ind. App. 91 | Ind. Ct. App. | 1921
The complaint in this case was in two paragraphs, to each of which a demurrer interposed by appellee for want of facts was sustained, and the appellants,. refusing to plead further, suffered a judgment to be rendered against them for costs; from which this appeal is prosecuted. The errors assigned challenge the action of the “court in sustaining said demurrers.
The first paragraph of the complaint was based upon a certain instrument in writing, which purported to be a real estate broker’s contract. That part of said instrument material to the decision of this case read as follows: “Provided that said J'. H. Ensor sell this property to party or parties whose attention was directed to said land by said Mitchell then said Mitchell entitled to and shall receive his commission of-per cent, on the sale price thereof.” By the second paragraph of his complaint the plaintiff sought to have said clause of said contract reformed by striking therefrom the word “Mitchell” where the same occurred in said contract and particularly in the aforementioned clause thereof, and inserting in lieu thereof, the names of the plaintiffs herein Charles B. Vogel and William H. Ax-
In the said second paragraph of complaint it is alleged: “That it was mutually agreed between plaintiffs and defendant that in case plaintiffs secured a buyer for said real estate that the defendant would pay plaintiffs a commission of three per cent, of purchase price; that by inadvertence and mutual mistake of the plaintiffs and the defendant at the time of drawing said contract, the amount of commission agreed upon between plaintiffs and defendant was omitted from said contract; that said omission was due to a mutual mistake of the plaintiffs and the defendant in drawing said contract; that it was intended by plaintiffs and the defendant to insert said three per cent, in said contract; but the scrivener who drew said contract by inadvertence and mistake left said amount out of said contract.” Plaintiffs ask that said contract be reformed and that they be given judgment thereon as reformed, against the appellee in the sum of $660.
A material part of the contract -in suit being verbal, it was an oral contract, and therefore invalid under our statute, §7463 Burns 1914, Acts 1913 p. 638. The court did not err in sustaining the demurrer to said first paragraph of complaint.
The action of the court in sustaining a demurrer to ■ the second paragraph of complaint presents a question of more difficulty. As the contract stood at the time suit was brought, it was entirely without any legal vitality.
In a note, 34 Cyc 927, it was said: “Through mistake or accident an instrument within the statute of frauds may include subject-matter as lands, which should have been omitted, or it may omit subject-matter which should have been included. No other ground for reformation exists within the statute. As to the first case the authorities agree that reformation does not conflict with the statute of frauds because an instrument already made is merely narrowed down. * * * As to the second a distinct conflict of authorities exists among the American decisions.”
In Lee v. Hill (1879), 66 Ind. 474, it was sought to correct a memorandum of the sale of personal property by inserting therein the word “sold.” The court in passing upon the matter said: “It is very clear, wé think, that the alleged mistake in this memorandum cannot be corrected, and the writing cannot be reformed, in the manner asked for by the appellants in this action. * * * Their alleged contract for the purchase of said goods from the appellees, therefore, comes fairly within the provisions of section 7 of ‘An act for the prevention of frauds and perjuries/ * *
In the case of Stodalka v. Novotny (1893), 144 Ill. 125, 33 N. E. 534, a bill had been filed in chancery to reform and correct a certain contract of sale theretofore entered into between the parties. It was alleged in the bill that the appellant and his wife had agreed to convey certain property therein described to the' appellee, and that they had agreed severally to waive their several rights of homestead and dower; that through ignorance, etc., said agreement in regard to release of such homestead and dower was omitted and left out of said contract. There was a prayer for reformation of said contract. In passing upon the matter as to the power of a court of equity to reform the said contract, the court said:
“It would seem clear, if it was a case of first impression, that a verbal contract not in writing, agreeing to convey the homestead, was, under the statute, without validity; and if it be true, as alleged in the bill shown at the hearing, that it was verbally agreed between complainant and the defendants that the homestead should be waived and released, that such agreement could not be specifically enforced, irrespective of whether part of the consideration had been paid or not.
“Not only must the contract contain a special release of the right of homestead', but it must also be in writing, and subscribed by the person in whose favor the
“And, second, it is insisted that the verbal agreement between the parties was for the conveyance and release of the homestead estate, and that, by mistake of the scrivener, it was omitted from the written contract, * * *. And the general doctrine, that the courts of equity will correct and reform instruments in writing to accord with the facts, was invoked. This doctrine is well understood and often applied', but courts of chancery will not, under the pretext of correcting a mistake, ‘make that a conveyance which is not in itself a conveyance.’ Thus it was said in Lindley v. Smith, 58 Ill. 250, in speaking of conveyances .by married women, under the statute then in force: ‘A court of chancery cannot give life to an instrument which has no vitality in itself * * *.’ So, here, the written instrument was without validity in respect to the estate of homestead of defendants in this property, and the court was without power to vitalize it. As such estate can only be released in writing, subscribed and acknowledged as prescribed by the statute, the attempt of the court to reform the contract in writing, upon proof of the verbal agreement, was in effect to make a new and independent contract affecting a release and waiver of the estate. This cannot be done.”
In Allen v. Kitchen (1909), 16 Idaho 133, 100 Pac.
In Mead v. White (1909), 53 Wash. 638, 102 Pac. 753, 23 L. R. A. (N. S.) 1197, 132 Am. St. 1092,
“Finally, it is contended that a court of equity has power to reform the contract and to enforce it when so reformed. The contract being invalid under the statute, parol evidence will not be admitted for the purpose of reforming it. To do so would result in permitting the parties to accomplish indirectly that which the statute forbids.”
The rule announced in the foregoing authorities we think to be sound law. The court did not err in sustaining the demurrer to said second paragraph of complaint. The judgment is therefore affirmed.