Rider v. . Powell

Balcom, J. Eider and wife conveyed the farm to the defendant, and he took possession of it and also of the personal property he purchased with it. He paid Eider $1100 in cash, and gave him an indorsed note for $500 in part payment of the purchase money. The oral contract therefore was so far performed as to relieve it from the operation of the statute of frauds; and the defendant could'not retain the farm and personal property without giving Eider such a bond and mortgage as their oral contract called for, unless the fact that there was no fraud or mistake on the part of the defendant," as to the terms of the bond and mortgage he gave to Eider, justified him in so doing. Parsons says: “ The question has often come before our courts, whether oral evidence can be received to show the mistake, (in a written contract,) and thereby make it in fact a new contract, when an oral contract would be void or not enforceable by the statute of frauds. The course of adjudication is not uniform on this point. But while it can not be denied that numerous authorities support a disregard of the statute in such cases, others maintain its authority.” (1 Par. on Con., 3d ed. 555.) Justice Story puts the case, “where the party plaintiff seeks, not to set aside the agreement, but to enforce it, when it is reformed and varied by the parol *313 evidenceand. then says: “A very strong inclination of opinion has been repeatedly expressed by the English courts, not to decree a specific performance in this latter class of cases; that is to say, not to admit parol evidence to establish a mistake in a written agreement, and then to enforce it, as varied and established by that evidence. On various occasions such relief has, under such circumstances, been denied. But it is extremely difficult to perceive the principle upon which such decisions can be supported, consistently with the acknowledged . exercise of jurisdiction in the court to reform written contracts, and to decree relief thereon. In America, Chancellor Kent, after a most" elaborate consideration of the subject, has not hesitated to reject the distinction as unfounded in justice, and has decreed relief to a plaintiff, standing in the precise predicament.” (1 Story’s Eq. J. 7th ed. § 161.) Archer J. in delivering the opinion of the court, in Moale v. Buchanan et al. (11 Gill and Johnson, 325,) said: “Had the agreement been entirely by parol, and a part performance, the "complainant would have been entitled to relief. Shall he be in a worse situation by having attempted to reduce the whole agreement into the form of a conveyance, if he shall make an omission in the conveyance, by mistake of an essential part of the agreement ?” He then answers this interrogatory in the negative, and refers to the opinions of Chancellor Kent, in Gillespie and wife v. Moon, (2 John. Ch. R. 585,) and Keisselbrack v. Livingston, (4 id. 144.) A judgment was given by this court in De Peyster v. Hasbrouck, (1 Kernan, 582,) reforming a mortgage and enforcing it against premises not originally embraced therein. The Supreme Court was therefore justified by authority as well as principle in reforming the bond and mortgage in this case, unless the fact that there was no fraud or mistake on the part of the defendant in fixing their terms, or respecting their terms, renders such decision erroneous. The decisions in Mathews v. Terwilliger, (3 Barb. 50,) and Quick v. Stuy *314 vesant, (2 Paige’s Ch. Rep. 84,) support this conclusion instead of militating against it. I am not aware of any adjudged case, in which it has been held that there must be a mutual mistake of fact by the parties to á written contract or some fraud on the part of the party not mistaken; to entitle the party who made the mis-. take and who suffers by it, to have such contract reformed so that it will truly express the oral agreement of the parties which was to be carried into effect by the written contract; and such a doctrine would be contrary to good sense and sound principle, (a) In Matthews v. Terwilliger, (supra,) G-bidley J. said: “blow if by the actual agreement of the parties, Matthews was to pay interest on the purchase price of the farm, how did it happen that the written contract which should have truly expressed the agreement of the par-' ties, wholly omitted all mention of interest ? Was it by the fraudulent design of the complainant, or by the mistake and inadvertence of the defendant ? If it was owing to either of these causes, then the complainant is not entitled to have the written contract, on which he has founded his bill, performed ; but the defendant is entitled to have it reformed, and the mistake corrected.” In that case the complainant endeavored to compel the defendant to specifically perform a contract for the sale of his farm, and the latter set up a mistake in the contract by the omission of an undertaking on the part of the complainant to pay interest on the portion of the purchase money which was not to be paid down; and there was no mistake on the part of the complainant as to the terms of the contract as written and signed by the parties, and it was framed precisely as he intended it should be. See Haire v. Baker, (1 Selden, 357. Also see 8 Cowen, 195; 1 Wend. 355.) It seems to me to be entirely "clear, upon principle, that Eider was entitled to have the bond and mortgage reformed so that they would conform to the oral agreement of the par *315 ties for the sale of the farm, although the defendant -may have known, at the time they were executed, that they varied from such oral agreement, and did not say or do anything to induce the scrivener to draw them differently from what they should have been drawn. And as there is no controlling authority to the contrary, I am of the opinion that this court should so hold, and affirm the judgment in the case, with costs. Davies, Rosekeans and Seldeh, Js. were also for affirmance ; the latter on the ground that there must have been fraud, or a mutual mistake. Footnotes [(a)] Eosekbahs, J. protested against this doctrine.