Mulby v. Dunham

OPINION OF COURT. The following is taken, verbatim, from the opinion. HOUCK, J. The presumption in law is that they signed the paper in question for the uses and purposes set forth and stated therein and for no other; and in the absence of proof to the contrary they are not legally chargeable with mistake or fraud. There is no evidence that either of the defendants intended to sign or execute any other kind of bond or obligation than the one now in suit. “When no question of fraud * * * and the right to reform an instrument is based solely on a mistake, it is necessary that the mistake be mutual * * 23 R. C. L., Section 20, page 327. The general rule seems to be that in an action to reform an instrument for mistake, the presumption is that the contract or written instrument, as executed, contains the agreement of the parties, and to overcome this presumption the mistake must be proved by satisfactory evidence. While a Court of Equity is clothed with broad powers, yet, in the absence of proof of a clear and substantial nature, it is not authorized to reform a contract or bond unless it is made to appear that a mistake has. occurred of fraud has intervened; and equity' will not make contract for the parties where they failed to do so themselves, except under the conditions thus indicated. Stewart v. Gordon et, 60 O. S. 170; Railroad Co. v. Bind, 89 OS. 92; Bank v. Carroll, 5 Ohio, 214. Under the facts and the rules of law herein laid - dówn;"'we aré ;of the. unanimous^ opinion ' that-thfe plaintiff" has '’failed in-his -proof •td“súé-,,‘ tain ""the” á'lleg'atidfis''-of--his' petition arid' that--, judgment must be entered for the defendants1.' ' (Shields and Lemert, JJ., concur-)