Waterman v. Dutton

By the Court, Cole, J. After a careful examination of the -decree of the circuit court rendered in this case, we are of the opinion that it should be affirmed. There does not seem to be any room to doubt but courts of equity in this country will reform a contract, so as to make it correspondent with the real intent and meaning of the parties ; and will, also, in the same suit, proceed to decree spe-eifiic performance of the contract thus reformed, in favor of the party asking reformation and performance of the contract, if it would be equitable and proper to do so. The principles upon- which courts proceed in cases of this nature, are so fully and ably discussed in the authorities referred to in the notes to chapter 5th of Story’s Eq. Jurisp., that it is only necessary to consult those cases tor the law upon this subject. It will be observed from those cases that, whatever may be the rule adopted in England and in some of the States, upon this ques274 tiori, the decided weight of authority in this country is in favor of the exercise of such jurisdiction by courts of equity. Sound reason and justice appear to be in favor of such a practice, and we therefore conclude to follow it in cases where substantial equity will thereby be accomplished. In the present case tlieie can be no hind of doubt but the attorney, Mr. Strong, in drawing the contract of Feby. 14th, 1855, by mistake left out a most material part of it. The evidence upon this point is clear and satisfactory. Strong testifies — and his testimony is wholly uncontradicted in this particular — that in drawing the contract, by mistake he omitted the following words : “ And the said Dutton and Raymonds will give bonds not to carry on the pier business, nor build another pier during the term of five years ; and will not do a general forwarding business in the said city of Racine, except on the river.” The case showed that this was an important condition in the contract, and it was embraced in the preliminary written proposition submitted by the defendants to the complainant. Mr. Sirong says that “ after the defendants “ had agreed to take the Cornell mortgages in payment, and “after we had ascertained the amount due upon them, I “ accepted for the complainant, unconditionally, the proposition contained in the first paragraph of defendant’s proposi- “ turn, exhibit ‘A.’ It was that proposition, and the accop- “ tance of it, which I was directed to put in writing.” No clearer case of a plain, palpable mistake in drawing an agreement can be presented, and the contract should be reformed so as to make it correspond with the intent of the parties. But it is objected that this contract is not such an one as ought to be enforced in a court of equity. And first it is insisted that the agreement between the parties is a voluntary one, for the sale of land, and not valid in law, being without consideration. We are unable to appreciate the force of this objection, when applied to this contract. For it appears to us that the defendants, in as clear and distinct a manner as language is susceptible of doing, agreed to and with the complainant to sell to him their pier, warehouse and lots occupied thereby in [275] tbe city of Racine, and certain, furniture, for the sum of six thousand dollars to be paid in a certain specified manner. With what propriety such an agreement can be said to be voluntary and without consideration wo are unable to understand. The consideration was six thousand dollars, and as far as we are able to judge it was a full, adequate and complete compensation for the property purchased. At all events it was the price the defendants placed upon their property, and they cannot complain if a court of equity holds it to be a sufficiently valuable and good consideration. Another objection taken to the contract, was that it was not mutual, since the defendants could not have compelled the performance of its conditions, had not the complainant been disposed t.o comply with them. The complainant agreed to pay the six thousand dollars, the purchase money, by procuring releases of certain mortgages for that amount, which the Cornells held against the defendants. It is said that the com plainant could not control the action of the Cornells, and had no power to compel them to give the proper releases. It is a sufficient answer to this objection to say that it was not an impossible condition which the complainant agreed to perform. The Cornell mortgages were already due, and the complainant could compel them to discharge them on paying them off. This part of the contract, the complainant did perform within a reasonable time. No time was specified in the contract within which the complainant was to procure these releases, and under the circumstances of the case, we think he was very prompt in obtaining them. And we are of the opinion that there is as little ground for objecting to a specific performance of the contract for the reason that it was not signed by the defendant, Seneca Raymond. It is not denied in the answer that Seneca was present when the first proposition was made to the complainant, knew of that proposition, and assented to its conditions. And whether he authorized his partners to bind him by entering into the contract of the 14th of February, of not, (a contract substantially in conformity to the preliminary proposition) it is quite immaterial to inquire, [276] since the evidence is most condusivethat Seneca saw fit to ratify the contract of the 14th of February, by signing and executing a deed of the property to the complainant in compliance with it. The contract then being, as we consider it, an equitable one, mutual between the parties, and for a good and valuable consideration, should be decreed to be specifically performed. It is proper, perhaps, before dismissing the case, to make a remark upon a clause of the decree rendered in the court below, which, it is suggested, is not entirely clear and distinct in its meaning. The circuit court, after decreeing that the contract should be reformed, by adding to it the clause inadvertently left out, in reference to giving the bond conditioned as therein stated, and that the contract, as reformed, be specifically performed, also proceeds to order that an account be stated between the parties, upon certain principles mentioned in the decree. And the commissioner taking the account, was directed, among other things, to credit the defendants wiih the necessary repairs made to said premises for the benefit and protection oí them. That is, the defendants were to be allowed for such expenses as they had incurred in keeping the property from going to decay. They were in possession in their own wrong, and it' they made improvements upon the property in order to render the use thereof more valuable to them, or because they fancied such improvements were necessary, or might enhance the value of the property, or made repairs -which were not necessary for the protection and preservation of it, they ought not to be compensated for any such improvements. The defendants sot up in their amended answer that the pier was damaged by a severe storm, and unavoidable acc dents, and was useless until repaiied, and that they expended five thousand dollars in repairing it. If the pier was washed away or destroyed while the defendants were in wrongful possession of the premises it would be most inequitable to permit them to build another pier and charge the expense to the complainant. We do not suppose that the c'.icuit court contempla'ed by its decree to allow them for [277] any sncli expenditure, but only for such repairs as were necessary for the due protection and preservation of the property. If tlie ware-house had been burned down while the defendants were in wrongful possession of the premises, and they had erected another one it would not have been contended that they should have been paid for the building thus erected by them. And for a like reason, if the defendants built a new pier after the old was destroyed, or made any expenditure in repairing it which was not strictly required for the preservation and protection of so much of the pier as remained,they should not bo allowed for it; and as we under-derstand the basis upon which the circuit court directed the account to be stated, they cannot be credited with it.