Tillar v. Wilson

Wood, J., (after stating the facts.) First. The chancellor found “that at the time the agreement as set forth in the answer was executed it was understood by and between the plaintiff and the defendant, and as part of the consideration for said agreement, that the claim sued upon herein as set forth in the complaint was to be fully settled and satisfied, and was so settled and satisfied by said agreement.” If this finding were correct, the settlement of the amount due by appellee to appellant on account of the payment by the latter of the Gravity Boiler Feeder Company’s notes was intended to be embraced in the written agreement, and its omission therefrom was a mistake common to both parties which would call for a reformation of the written agreement so as to effectuate their purpose. The decree of the court in favor of appellee was in effect tantamount to this. The testimony' of appellee and Judge Allen tends to show that the parties to the agreement intended that it should settle all matters between them. But the testimony of appellant tends to show that it was intended to settle only differences growing out of the partnership transactions. So there is a conflict, and with the view most favorable to appellee it can only be said that there is a mere preponderance of the evidence in his favor. But this is not sufficient to entitle a party to reformation. The proof must be “clear, unequivocal and decisive.” Goerke v. Rodgers, 75 Ark. 72; McGuigan v. Gaines, 71 Ark. 614. We do not find it so in this case. The explicit language of the instrument shows that it had reference solely to the compromise of the litigation then pending between appellant and appellee, and to the settlement of the affairs of their partnership, and nothing else. Language could not more plainly set forth the purpose of this agreement, and the utmost stretch of construction could not make it include the settlement of appellee’s liability on the notes mentioned, yet appellee read this agreement or had it read in his presence. He then had his attorney to read same, and, notwithstanding its failure to compass the specific object of including the settlement of appellee’s liability to appellant on account of the notes, as one of the purposes which appellee contemplated and had in mind at the time, he nevertheless signed the agreement, without mentioning this particular matter to appellant. So, likewise, his attorney h&d this specific thing in mind, but failed to mention it specifically to appellant, and failed to suggest a modification of the agreement to cover it, although he says “it was not quite as explicit as I would have made it, and does not cover the matter entirely.” This certainly tends to prove that, if appellee had this matter in mind at the signing of the agreement, he failed to mention it to appellant, and it does not at all contradict appellant’s evidence that “there was no other agreement except that which was in the writing signed.” There was no ground for reformation. Second. The testimony of appellee and S. R. Allen to the effect that the agreement was intended to settle the liability of appellee to appellant on account of the notes was in contradiction, and not in explanation, of the terms of the written contract between the parties. It tended to vary those, and thus contravened the rule which excludes parol evidence. 1 Gr. Ev. § 275 et seq., notes; Colonial & U. S. Mortgage Co. v. Jeter, 71 Ark. 185; Moore v. Terry, 66 Ark. 393, and cases cited; West-Winfree Tobacco Co. v. Waller, 66 Ark. 445. In the subject-matter of the written agreement was the compromise of the lawsuit pending in the Supreme Court and the settlement of the affairs of the partnership that had existed between them. The payment of the Gravity Boiler Feeder Company’s notes and appellee’s contributory share thereof which was due appellant, had not even the remotest connection, under the proof, with the affairs of the partnership between Tillar and Wilson, much less with the lawsuit that was pending in the Supreme Court. Here the entire contract relating to the subject-matter about which the parties were contracting, as indicated by the terms of the instrument, was reduced to writing, and there is no ambiguity about it. The cases of Weaver v. Fletcher, 27 Ark. 510, and Kelly v. Carter, 55 Ark. 112, cited by appellee, are not applicable. The decree is reversed, and judgment will be entered here in favor of appellant for the amount sued for in - his complaint with interest. So ordered.