Cobb v. . Cobb

Clarkson, J. The plaintiff and defendant are husband and wife, and prior to 19 September, 1929, lived in the town of Lancaster, South Carolina, where plaintiff was employed in the Lancaster Cotton Mills. They lived together with two sons of plaintiff by a former marriage and one daughter of defendant by a prior marriage, there being no children by this marriage. Owing to differences they entered into a separation agreement, dated 19 September, 1929. The separation agreement seems to have been carefully drawn and executed by the parties. Section 3 of the separation agreement is as follows : “The said husband shall, during the joint lives of himself and bis said wife, pay to the said wife the sum of $300.00 per month, payable on or before the 10th day of each month, at such place as the wife may from time to time fix; provided, however, that if at any time in the future said husband’s income from any and every source whatsoever shall be materially reduced or diminished below the amount of such income received by him during the 12 months next preceding the date of this instrument, then the husband shall have the right to apply to the court of competent jurisdiction for a reduction in the amount of the monthly payments provided for above, and such court may grant such reduction in the amount of said monthly payments as it in its discretion may find and determine to be in keeping with such reduced income of the husband.” Section 8: “Such legal steps may immediately be taken and/or proceedings bad as will render this instrument a valid and legal contract, binding upon and enforceable against each of the parties hereunder under the laws of the State of South Carolina, and the husband shall pay the expense and costs of such proceeding.” A decree was signed in the Lancaster County, South Carolina, court by T. J. Maudlin, presiding judge of the 6th Circuit, embodying the above separation agreement by the parties, and duly witnessed and signed as follows: “We consent to the foregoing decree. Estelle Land Cobb, Plaintiff. F. Gordon Cobb, Defendant.” In the decree, among other things, is the following: “It is ordered, adjudged, and decreed: *151 That the written agreement made and entered into by and between the plaintiff, Estelle Land Cobb, and the defendant, E. Gordon Oobb, be and the same is hereby ratified and confirmed in all respects and made the judgment of the court.” On 11 August, 1934, the plaintiff, who had become a resident of Mecklenburg County, North Carolina, brought this action in the Superior Court against the defendant. The prayer of plaintiff’s complaint is as follows : (1) That the monthly payments of $300 in the separation agreement and the decree “be set aside, revoked, and diminished to nothing.” (2) That the separation agreement and decree “be set aside, revoked, canceled, and declared void.” (3) That the plaintiff in this action be allowed to go without day, “free from further harassment and annoyance by the defendant in this action.” The defendant denied the material allegations of the complaint and prayed the court as follows: (1) “That the court will declare the contract between the parties hereto, a copy of which is attached to the complaint marked ‘Exhibit A,’ as the valid and binding obligation of plaintiff, and will enter an order requiring the plaintiff to fulfill and perform the terms and conditions thereof.” (2) “That the court will adjudge defendant entitled to recover of plaintiff the sum of $300.00 per month, beginning with the month of August, 1934, until the trial of this action, and will render judgment in favor of the defendant and against plaintiff therefor.” (3) “That by reason of the plaintiff’s failure to make payments of $300.00 per month, as provided for in said contract, for the months of August, 1934, through August, 1936, the plaintiff is indebted to the defendant in the sum of $7,500, with interest.” From a careful reading of plaintiff’s complaint, we cannot see how the separation agreement and decree can be set aside, revoked, canceled, and declared void. The plaintiff also brings this action to have the allowance diminished to nothing under section 3 of the separation agreement, and at the same time says the agreement is void. To set aside the separation agreement and decree, there must be allegation and proof of fraud or mistake. Essential elements of “actionable fraud” are representation, falsity, scienter, deception, and injury. Leggett Electric Co. v. Morrison, 194 N. C., 316; Evans v. Davis, 186 N. C., 41; Peyton v. Griffin, 195 N. C., 685. In order to entitle a party to the correction of a written contract, he must allege and prove a mistake of material facts on his part, and that *152 of the plaintiff as well, or mistake on bis part, and some fraudulent practice or act on the part of the plaintiff, whereby be was misled. McMinn v. Patton, 92 N. C., 371, 374. A mistake of one party will not entitle bim to correction of a written instrument, but when there is mutual mistake, or mistake on one side, and either fraud, surprise, undue influence, misapprehension, imposition, or like cause on the other, giving rise to the plaintiff’s mistake, the court will give relief. White v. Richmond, etc., R. Co., 110 N. C., 456, 460; Day v. Day, 84 N. C., 408; Strickland v. Shearon, 191 N. C., 560; Crawford v. Willoughby, 192 N. C., 269; Insurance Co. v. Edgerton, 206 N. C., 402 (407); Oliver v. Hecht, 207 N. C., 481; Crews v. Crews, 210 N. C., 217. Neither can the separation agreement or decree be set aside except for fraud or mistake. In the pleading there is neither sufficient allegation of fraud or mistake or evidence sufficient to set aside the separation agreement or decree. It was agreed in the court below that the matter “may be heard without a jury, and that the court should find these facts and state his conclusions of law arising thereon.” The court below heard the evidence, found the facts, and stated his conclusions of law. It is well settled that the findings of fact, if there is any evidence to sustain them, are as binding on us as if the facts were submitted to and found by the jury. The facts found by the court below were supported by evidence, and we must sustain them. The question of how much the husband’s income had been reduced was one of fact, and the court reduced same one-third and required plaintiff to pay $200.00 a month instead of $300.00. The separation agreement and decree gave the court discretion “to be in keeping with such reduced income of the husband.” There is no evidence that the court abused its discretion or acted arbitrarily. The plaintiff chose the forum to be heard in and must abide the result. Under section 3 of the separation agreement the discretion is clearly given. The exercise of this discretion, when not abused or arbitrary, is binding. The plaintiff is bound by the findings of the court below. The judgment of the court below was that the plaintiff recover $5,200, being twenty-six monthly payments at the rate of $200.00 a month. The defendant contends that the amount should be $300.00 a month. We cannot so hold. The defendant, as well as the plaintiff, gave the discretionary power in the separation agreement or decree and is bound by same. In rendering judgment for the deferred payments due defendant, we can see no error. The plaintiff himself submitted to the jurisdiction of the court, and from the separation agreement the implication was that whatever the court found to be due by plaintiff he had to pay, and judgment *153 was rendered accordingly. At least there is no reversible or prejudicial error. From the view we take of this case, we see no prejudicial or reversible error in any of the exceptions and assignments of error made by plaintiff or defendant. The plaintiff’s exceptions and assignments of error were mostly made to the admission and exclusion of evidence, immaterial in its nature. We find no error in either plaintiff’s or defendant’s appeal. Affirmed.