School Dist. No. 4 v. Hartong

JOHNS, J. — 1. The law is fundamental and is so decided by this court in the case of Stephens v. Murton, 6 Or. 193 that: “In order to warrant a court of equity in reforming an instrument on the ground of mutual mistake, the proof of the mistake and that it was mutual must be very clear.” This principle has been followed by numerous decisions of this court, including the case of Hughey v. Smith, 65 Or. 323 (133 Pac. 68), in which they are all collated and approved. Before the written contract can be reformed it must be made to appear that there was a mistake and that the mistake was mutual and the burden is upon the plaintiff to prove that fact by clear and satisfactory evidence. After hearing the testimony the lower court found that nothing was omitted from the contract by mutual mistake or in [158] advertence and that the writing constituted the only contract between the school district and Glenn & Company. We have carefully read the complete record in this case. The written contract, as finally approved, was prepared by one of the directors of the plaintiff and was read over and discussed in a meeting of the school board and was then signed by the respective members of the board and, as so signed, the same writing was thereafter submitted to and was executed by Glenn & Company. While it may be true that there was a mistake,' as to the contract on the part of the school board, the evidence tends to show that the mistake was more in the construction of the contract by the members of the school board than in any omission from the contract. Assuming that there was a mistake and an omission from the written contract, on the part of the school board, the evidence is neither clear nor convincing that the mistake was mutual and the judgment should be affirmed. ’ Affirmed. McBride, C. J., Bean and Moore, JJ., concur.