Rider v. Powell

Balcom, J. —Rider 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 Rider eleven hundred dollars in cash, and gave him an indorsed note for five hundred dollars 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 Rider such a bond and mortgage as their oral contract called for, unless the fact that there was no fraud or mistake oh the part of the defendant, as to the terms of the bond and mortgage he gave to Rider, 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 cannot be denied that numerous authorities support a disregard of the statute in such cases, others maintain its authority.” 1 Pars, on Gont. 3 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 evidence; ” and then says: “A very strong inclination of opinion has been repeatedly expressed by the English courts, not to decree a spe- - cific 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 Eq. 7 ed. § 161. Archer, J., in delivering the opinion of the court, in Moale v. Buchanan, 11 Gill & J. 314, 325-, [66] 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 opinion of Chancellor Kent, in Gillespie v. Moon, 2 Johns. Oh. 585, and Keisselbrack v. Livingston, 4 Id. 144. A judgment was given in this court, in De Peyster v. Hasbrouck, 11 N. T. 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 decision in Mathews v. Terwilliger, 3 Bari. 50, and Quick v. Stuyvesant, 2 Paige, 84, support this .conclusion instead of militating against if. . [The learned judge concluded by expressing .the opinion that the contract might be reformed without proof that the mistake was mutual, and therefore that the judgment should be affirmed, in which the court did not concur.]