A. E. Wood & Co. v. Standard Drug Store

KUHN, J. (after stating the facts). It is the settled rule in this State that in order to reform a written contract on the ground of mistake, such mistake must be mutual and common to both parties to the contract. 260 (49 N. W. 567); Burns v. Caskey, 100 Mich. 94 (58 N. W. 642); Kinyon v. Cunningham, 146 Mich. 430 (109 N. W. 675). This record is barren of any testimony that would indicate that there was any mistake on the part of the defendant in omitting from the lease the provision in question. In fact it clearly appears that Mr. Cunningham, upon having his atten [456] tion called to it, insisted that the omission was deliberate and intentional. No relief can be predicated on the ground of mistake. We are also of the opinion that the proofs are not sufficient to make out a case of fraud. The lease, after being drawn by the defendant, was in the possession of the plaintiff for three days before it was signed. It is claimed that the plaintiff had a right to assume that the lease was the same as the old lease. But it appears that other and substantial changes were made in the terms of the lease other than the omission of the heating provision. It is elementary that fraud is not to be lightly presumed, but must be firmly established by proof. Plaintiffs neglect to examine the writing which he signed cannot be made the basis of a charge of fraud. It may be reasonably contended that if the omission to insert the provision had been called to the attention of the defendant at the time of signing, the lease might not have been executed at all. ■ The plaintiff has failed to make out a case for the interposition of equity, and the decree, dismissing the bill, is therefore affirmed, with costs to the defendant. Stone, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.