Chicago Title & Trust Co. v. Smyth

Given, C. J. I. For convenience, we will refer to Charles P. Kellogg & Co. as the plaintiff. Plaintiff, doing business in Chicago, was the owner of a stock of goods in a store and on sale in Crestón, Iowa, in charge of one E. K. Jones. Plaintiff, desiring to sell said stock, sent one T. C. Ketcham to see the defendant, at Chariton, with the view of selling the goods to him. On the 403 thirty-first day of March, 1893, they two went to Crestón. Defendant examined the stock, and offered five thousand three hundred dollars for it, which offer was refused, and the negotiations ended. On April fifth, following, defendant went to plaintiff’s store in Chicago, where negotiations were resumed, and an agreement arrived at. Thereupon, plaintiff, by its president, executed and delivered to the defendant a bill of sale reciting that “in consideration of five thousand dollars, to be paid according to contract,” it sold and assigned to defendant all the stock of merchandise in its store at Crestón, excepting certain articles enumerated. Following this, the writing says: “In addition thereto, said Jay J. Smyth is to have the receipts from all sales from and after April 1st, 1893, less the expense of operating the business from that date.” Plaintiff at the same time delivered to defendant an unsealed letter to Mr. Jones, as follows: “We have just wired you as follows: Smyth has bought stock. Sales and expenses since Saturday first go with it. Make Mr. Smyth an exact statement of the sales from Saturday. Expense includes rent to April 15th, and all salaries from Saturday.” This bill of sale and letter the defendant read at the time they were delivered to him.. Defendant returned to Crestón, and presented this bill' of sale and letter of instructions to Mr. Jones, who thereupon turned over the stock of merchandise to him, and gave him a written statement of the sales and expense to that date, including April 1, 1893. The sales for the first day of April amounted to one hundred and fifty-five dollars and' eighty-one cents, and the expenses to six dollars and seventy cents, leaving one hundred and forty-nine dollars and eleven cents as the net proceeds of the day. II. This controversy is simply as to which party is entitled to the net proceeds of the sales made on April 404 1, 1893. The plaintiff executed and delivered, and the defendant received, the bill of sale as the contract on that subject. It says that the defendant “is to have the receipts from all sales from and after April 1st, 1893,” less expenses. This the defendant says, in his amendment to his answer, “did not embody the intention of the parties, and did not mean that the said contract should exclude the sales of the Crestón store for the first day of April, 1893,” and asks that the contract be reformed, “that the same may express the intention of the parties.” He does not allege either fraud, accident, or mistake in writing’ the contract as it is, but simply that it does not express the intention of the parties. Accepting this as a sufficient allegation of mutual misitake, we inquire whether defendant is entitled to have the contract reformed so as to read “on,” instead of “from and after,” April 1, 1893. There is- neither allegation; nor proof of fraud or accident; hence we inquire only as to mistake. Both parties knew that the words “from .and after April 1st, 1893,” were written in the contract. Defendant testifies: “I opened it up, and looked it over, and I thought it was all right. I looked over the agreement, and thought it was all right.” Further on he says: “I looked it over, and they looked it over carefully. I didn’t put much strength to it. I stuck it in my pocket, and I thought it was all right.” Neither party then intended that any different words should be used. The contention is not that different words were intended to be used, but as to the construction to be placed upon those used. To reform a writing on the ground of mistake, it must appear that the mistake was mutual. Wachendorf v. Lancaster, 61 Iowa, 509. Concede that there was a mistake, so far as defendant was concerned; it was not mutual, for the instrument was unquestionably written just as plaintiff intended it should be. To authorize the reformation of 405 a written instrument on the ground of mistake, “the evidence must be clear, satisfactory, and free from reasonable doubt. Wachendorf v. Lancaster, supra. Defendant testifies that the agreement arrived at, and .which was to have been embodied in the writing, was .that he was to have the goods for five thousand dollars, as they were when he last saw them, namely, on the .evening of March 31st, and the proceeds of all sales made after the close of business on the thirty-first, less expenses. In this'the defendant stands alone, and is contradicted by several witnesses on behalf of defendant, having- equal knowledge, and.by at least one undisputed circumstance. On the thirty-first he offered five .thousand three hundred dollars for the goods, and on the fifth but five thousand dollars, giving as a reason .that the stock had been reduced by sales. If he was not to have the sales of April 1st, there was force in the reason; otherwise there was none. We have examined this evidence with care, and are of the opinion that it fails to establish defendant’s contention by even a fair preponderance, much less with that degree of certainty that authorizes the reformation of written instruments. See Tufts v. Lamed, 27 Iowa, 330; Gelpeke v. Blake, 15 Iowa, 387; Jack v. Waber, Id. 450; Hervey v. Savery, 48 Iowa, 313; Clute v. Frasier, 58 Iowa, 268; McTucker v. Taggart, 29 Iowa, 478; Strayer v. Stone, 47 Iowa, 333; and Wachendorf v. Lancaster, supra. , III. We next inquire as to the proper construction to be given to the words “from and after April 1, 1893,” as written in this contract. “A contract is to be understood according to the meaning of the language employed therein, and not according to the views of its meaning entertained by the parties drawing it; and a .court will not change plain language of the contract 406 in order to conform it to a mistaken notion of its meaning’, entertained by the person executing it, in the absence of proof of fraud, accident, or mistake.” Wadsworth v. Smith, 43 Iowa, 439. The learned district judge, after noting that the courts have differed .in their construction of the words “from and after,” correctly states the rule to be as sustained by^the .weight of authority, “that if it is from an act done it is inclusive, but if from a day it is exclusive.” This statement of the rule is based upon reason as well as authority. . If it is from an act done, the time commences immediately upon the act being done. We have a familiar illustration in legislative enactments .which are to take effect from and after their passage, ,or from and after publication. In the case of Arnold v. U. S., 13 Sup. Ct. Rep. 403, the question was whether the additional duties imposed by an act passed and which took effect on July 1, 1812, were chargeable upon the cargo of a ship that came within the jurisdiction of the United States, and within one of its collection districts, on the first day of July, 1812. The court says, “The statute was to take effect from its- passage, and it is a general rule that, where the computation is to be made from an act done, the day on which the act is done is to be included.” It was held that the goods were subject to the additional duty. In Arrowsmith v. Hamering, 39 Ohio St. 573, a petition in error was filed on April 18,1883, without leave of court. On that day an act was passed, and took effect, amending the statute so as to require leave to be first granted. It was held that by presumption of law the act took effect from the •commencement of that day, but that such presumption .would not prevail where it is in conflict with any right acquired in actual point of time, or on that day before that act took effect, and that in such case the exact time in the day may be shown; that in the absence of 407 proof that the case was pending on that day, before the act was passed and took effect, the presumption of law will prevail that the act took effect from the commencement of the day. Mr. Bishop, in his work on Contracts (section 1343), states the rule thus: “Where time is .computed from an act done, the general rule is to include the day. Where it is computed from the day of the act done, the day is excluded.” He adds: “But .it is believed that not all courts will, and none should, adhere to this or any other like technical distinction, in a case where, by disregarding it, they can better carry into effect what, all the considerations being taken into account, it is reasonably plain the parties meant.” In support of this latter statement a number of eases are cited. In Wilcox v. Wood, 9 Wend. 345, it was held that a lease from the first day of May in one year to the first day of May in the succeeding year excludéd the first day. Our statement of the rule is in harmony with paragraph 23 of section 45 of the Code, prescribing rules to be observed in the construction of statutes. It is there provided that in computing time the first day shall be excluded, and the last included, unless the last falls on Sunday. Applying this rule to the language under consideration, we must say that the words “from and after April 1,1893,” exclude that date. We accept, as founded in reason and justice, that other rule stated by Mr. Bishop as quoted above, and. inquire whether, “all the considerations being taken into the account,” it is reasonably plain that the parties meant .otherwise. From our examination of the evidence, as already stated, we think it fairly appears that the parties intended, not only to use the language that they ,did, but to use it in the sense of excluding the first day of April. Defendant is not only unsupported in his claim as to the verbal contract, but, as we have said, is directly contradicted by several witnesses and by the 408 circumstances. Our conclusion is that the decree and judgment of the district court must be reversed, and that judgment be entered in favor of the plaintiff for the amount claimed, with costs. — Reversed.