Sauer v. Nehls

SherwiN, J. i. Reforma-stniments: proof' There is no serious conflict between counsel as to the law applicable to this case, and, if the contract alleged were proven with that degree of certainty required in cases of this kind, the plaintiff would undoubtedly be entitled to the relief asked. The notes and the mortgage are absolute in form, and are presumed to contain the whole agreement between the parties; hence parol evidence, though admissible in equity for the purpose of ascertaining the true agreement, must afford clear and convincing proof of an agreement other 'than that expressed in tbe writing. A written agreement can only be reformed upon clear and satisfactory evidence of fraud or mistake, and the record before us is wholly insufficient to warrant a finding that the notes and the mortgage were not executed precisely as it was understood and agreed they should be, and the trial court was clearly right in refusing to reform them. This is conceded by the appellant in his reply argument, where he says that he makes no claim that the notes were to be written differently. [186] cancblla-suumeutef prooí. 3, transaction evidence. ' [185] Though the notes may not be reformed, it is undoubtedly true that, if the agreement claimed were actually [186] made, and thereunder the'notes and the mortgage were to be cancelled upon the death of the .father, equity would carry out such an agreement, warran-j; the cancellation of the written agreement of a party, the evidence upon which it is done must be as clear and satisfactory to the mind of the chancellor, as must that upon which a reformation of'a contract is based. The plaintiff was not a competent witness as to the agreement with his father, and the testimony upon which he rests his case consists of statements made by the deceased, long before the purchase of the farm by the plaintiff, that he was going to give the plaintiff $2,000 to buy it with, and that all that the plaintiff would have to do would be to pay interest thereon as long as the deceased lived,. and that he would “make it all straight when he died.” After the money was furnished the plaintiff, the deceased .stated that he would cancel the note “after he is dead.” . The entire evidence satisfies us that there was no gift or .advancement to the plaintiff of the money so furnished to him, but that his father may have contemplated providing therefor in his will, reserving the absolute right to do so or not. He had at different times deeded valuable lands to his several sons, and in his will he provided for his several daughters. We reach the conclusion that the iilaintiff’s proof does not sustain his claim, and the judgment is aeeiemed.