Donaldson v. Hull

Potter, J. Plaintiff filed a bill of complaint against defendant to correct, on the ground of mistake, an agreement in writing made between Donald A. Donaldson and defendant, and for other relief. Defendant denied the material allegations in the bill of complaint. From a decree for defendant, plaintiff appeals. Plaintiff need establish his right to relief only by a preponderance of evidence. The contract involved was one of partnership settlement and sale by Donaldson of partnership assets to defendant. The parties went to a banker who made a memorandum of the agreement entered into. This agreement was subsequently reduced to form by the banker, read over and executed by the parties. Having deliberately put the agreement in writing and signed and executed the same, such written agreement, in the *390 absence of fraud, accident, or mistake, is so conclusively presumed to embody the real contract that no parol evidence can be permitted to vary its terms, but where it is sought to overthrow, by parol evidence, on the ground of mistake, a written contract, it has been the uniform holding of this court the evidence to establish such mistake must be clear and convincing. The trial court, upon a review of the testimony, was unable to find sufficient evidence of mistake to warrant modification of the written contract as prayed. In this we think the court was correct. Decree affirmed, with costs to defendant. Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Btjtzel, JJ., concurred.