The allegations of the petition, seeking reformation on the ground of a mutual mistake, were insufficient to set forth a cause of action; and the trial judge did not err in sustaining a general demurrer to the petition.
Nos. 16416, 16425. NOVEMBER 17, 1948.
William A. Wheeler filed a suit in equity against Mrs. R. B. Jackson, formerly known as Miss T. B. Poole, alleging in substance: that the defendant on June 6, 1929, executed sixty-two promissory notes for the sum of $35 each, except the last note which was for the sum of $15, the notes being due and payable one each month after June 6, 1929, all payable to Hugh A. Smith; that all of the notes have been paid except the last nineteen notes; that the notes were secured by a deed to secure debt executed at the same time the notes were executed; that the notes were endorsed without recourse by Hugh A. Smith to Elizabeth Brown Arnold on September 30, 1929, and were endorsed without recourse by Elizabeth Brown Arnold to William A. Wheeler on March 22, 1948; that the security deed executed by the defendant to secure the payment of the notes was canceled of record on May 17, 1930, by Hugh A. Smith, and a new deed to secure debt was executed to cover the balance due. The prayers of the
petition, so far as material, were: (a) "that equity reform each of the nineteen notes . . by decreeing the insertion just before the signature of said notes of the words, `Witness my hand and seal;'" and (b) "that plaintiff have judgment against defendant for the sum of $645, principal, and for the sum of $967.43 as interest from June 6, 1929," and a judgment for $161.20 as attorneys' fees.
General and special demurrers to the petition were filed by the defendant. The trial judge sustained the general demurrer and dismissed the petition, but did not rule upon the special demurrers. The main bill of exceptions assigns error on the judgment sustaining the general demurrer. By cross-bill the defendant in error excepts to the failure of the judge to rule on the special demurrers.
The petition in this case seeks to reform each of the notes sued on by inserting "just before the signature of said notes the words, `Witness my hand and seal.'" Reformation is sought upon the ground of a "mutual mistake." The language of the petition upon which this relief is sought is as follows: "Petitioner seeks to have equity reform said notes by adding to each in its body, preceding the signature, the words, `Witness my hand and seal,' on the ground that that language was what the parties intended to use and do, and that those words were omitted by manifest error and mistake."
This court, in Sawyer Coal Ice Co. v. Kinnett-Odom Co.,192 Ga. 166, 173 (14 S.E.2d 879), said: "`Mistake relievable in equity is some unintentional act, or omission, or error, arising from ignorance, surprise, imposition, or misplaced confidence. This power should be exercised with caution, and to justify it the evidence shall be clear, unequivocal, and decisive as to the mistake.' Code, § 37-202. `Equity will not reform a written contract unless the mistake is shown to be the mistake of both parties; but it may rescind and cancel upon the ground of mistake of fact material to the contract of one party only.' § 37-207. `A distinction exists between reforming a contract and executing a contract in case of mistake. To authorize the former, the court
shall be satisfied by the evidence that the mistake was mutual; but the court may refuse to act in the latter case if the mistake shall be confined to the party refusing to execute.' § 37-208. `Ignorance by both parties of a fact shall not justify the interference of the court.' § 37-210. There are other instances which justify reformation, but they are not material here. The demurrer challenged the sufficiency of the allegation to show a relievable case of mistake of fact. The allegations on this subject are: `6. The plaintiff shows that while both the aforementioned deeds described the property conveyed as lots 5 and 6, square 26, in the City of Macon, and a certain previously granted encroachment, which said lots and encroachment were of the dimensions stated therein, yet that it was the contract and so intended by the parties to each said deed to convey to each grantee all the ground upon which the purchased buildings, with machinery and equipment attached thereto, stood. 7. That by mutual mistake of the parties all the land intended to be conveyed was not properly described in either the deed from Sawyer Coal Ice Company to Macon Ice Service Company, or in the deed from Macon Ice Service Company to the Kinnett-Odom Company, which is evidenced by the fact that after obtaining the deed from the Macon Ice Service Company, petitioner discovered that certain of said buildings and attachments thereto formerly believed to be on the land described in the deed in reality extended and encroached over upon Mulberry Street adjoining twenty-two and five-tenths (22.5) feet, more or less. 8. Plaintiff alleges that it was therefore the contract and the intention of the grantor and grantee in each aforementioned and described deed to respectively convey and receive title to said 22.5 foot tract lying in Mulberry Street, upon which tract said buildings extended.' The rules of pleading in this State require that allegations of mistake should be set forth with considerable definiteness and certainty, and that such general allegations as that certain matters were left out of or included in the contract as written `by mutual mistake of the parties' are not sufficient.Dover v. Burns, 186 Ga. 19 (196 S.E. 785); Gamble v.Knott, 40 Ga. 199."
In Frank v. Nathan, 159 Ga. 202, 208 (125 S.E. 66), this court held: "`In all cases of mistake of fact material to the contract,
or other matter affected by it, if the party complaining applies within a reasonable time, equity will relieve.' Civil Code, § 4580. But a bill of complaint in a suit to reform a written instrument must clearly and distinctly state what was the contract or agreement between the parties, and show what part of the contract was omitted when it was reduced to writing, or what portion of the contract as it was expressed in the writing was not embraced in the original contract. `If mistake is relied on, it must be distinctly charged and stated with precision, the particular mistake being shown and how it occurred. In other words, the pleader should state why the terms of the actual contract happened to be left out, or how terms not agreed on came to be inserted.' 23 R. C. L. 361." See also Martin v. Turner,166 Ga. 293, 295 (143 S.E. 239).
In the instant case, no effort is made to show why the language sought to be inserted was left out of the notes, or how the mistake occurred. The language used in the petition in this case, upon which the prayer for reformation is based, clearly does not measure up to the rules laid down in the cases cited.
It follows that there was no error in the judgment sustaining the general demurrer and dismissing the petition.
Judgment affirmed on the main bill of exceptions; cross-billdismissed. All the Justices concur.