Kruse v. Koelzer

KeRWIN, J. 1. The evidence of mistake on the part óf the plaintiff is very meager. True, the plaintiff William Kruse testified that he stated he must have seventy-five feet for his business, but when he so stated defendant Bernard Koelzer made no reply, except that he would have seventy-five feet on the alley, and this upon the theory that, the lot being 150 feet on the alley, one half -would give him seventy-five, feet. Defendant Bernard Koelzer testified that he never agreed to sell seventy-five feet, or anything but the south half, and the plaintiff William Kruse does not testify positively that in any of the conversations had before the execution of the deed defendant Bernard Koelzer agreed to make the deed for the south seventy-five feet. It is -true Ewens, real-estate agent, testified that it was understood plaintiff’s property was to be seventy-five feet on the square, lie further testified that defendant Bernard Koelzer asked who was to lose the angle on Vliet street, and Ewens said, it being on his side, he would have to lose it, to which said de-' — 539 — fendant made no reply. Joseph Ewens, architect, testified Kruse said he had seventy-five feet on the east line owing to-having sold seventy-five feet to Kruse, hut he did not know how much he had on the west line. This evidence was eon- sistent with the theory that he had sold the south half to-plaintiffs, because all parties understood at this time that the-lot was 150 feet on the alley, as it appeared on the plat examined by the parties. The plaintiffs and defendants were mistaken as tp the length of the lot, and this appears to be-the mistake between the parties. It is quite clear that defendants did not intend to make any deed different from the one made. The evidence shows that defendants particularly examined the contents of the deed before it was signed, went to the office of the scrivener for that purpose an hour — 540 — before tbe appointed time, so as to be able to do so„ and plaintiff William Kruse was present when tbe papers were signed. Now, it is quite clear defendants signed tbe deed they intended to sign; tbat there was no mistake on their part; and no fraud or other ground of equitable relief is claimed.. Tbe reformation is asked because of mistake, and, In order to warrant a court of equity in reforming a written instrument on tbe ground of mistake, the mistake must be mutual. It is not sufficient tbat plaintiffs were mistaken in tbe description; defendants must be also. It is well established tbat, to warrant a court of equity in reforming a written instrument on tbe ground of mistake, tbe evidence must he clear and convincing tbat tbe mistake was mutual and that both parties intended to make an instrument different from tbe one sought to be reformed. 3 Pomeroy, Eq. Jur. § 1376; Meiswinkel v. St. Paul F. & M. Ins. Co. 75 Wis. 147, 43 N. W. 669 ; Harter v. Christoph, 32 Wis. 245. Tbe evidence is undisputed tbat defendants carefully examined tbe deed before tbey signed it, and knew what tbey were signing, and intended to make a deed of tbe south half of tbe lot in question, and it is not easy to see upon what theory the court found there was a mutual mistake. It is doubtless true that plaintiffs expected to get seventy-five feet of tbe lot, but this not because of a different deed from tbe one executed, but because they understood tbe lot to be 150 feet long and tbat the deed they received would give them tbe quantity of land tbey expected. This is obvious from tbe evidence. One witness says: “Q. What was said as to tbe size of tbe lot ? A. I think Mr. Kruse talked about bis wanting seventy-five feet, and with tbe supposition tbat tbe lot being 150 feet deep, according to tbe map, why, there was no reason to have any question raised at all as to size.” The parties were present when tbe deed was executed, and there is no evidence tbat tbey did not understand its contents. But even if tbe deed did not describe tbe — 541 — land intended to be conveyed, it was tbe plain duty of the-plaintiffs to open tbeir eyes and see it. They could not accept tbe deed, take possession of tbe property, sleep upon tbeir rights, and allow defendants to act upon tbeir acquiescence, and afterwards ask a court of equity to grant tbeni. relief from tbeir own negligence. It is well settled that,, where a party accepts a written instrument in consummation of an agreement entered into, it is bis duty to know its contents, unless there be fraud or mistake of such a nature that be could not reasonably have informed himself- when put' upon inquiry. Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 246; Van Beck v. Milbrabh, 118 Wis. 42, 94 N. W. 657; Herbst v. Lowe, 65 Wis. 316, 26 N. W. 751; Sanger v. Dun, 47 Wis. 615, 3 N. W. 388; Fuller v. Madison M. Ins. Co. 36 Wis. 599. Men, in tbeir dealings with each other, cannot close their eyes to tbe means of knowledge equally accessible to themselves and those with whom they deal, and then ask courts to relieve them from the-consequences of tbeir lack of vigilance. Mamlock v. Fairbanks, 46 Wis. 415, 1 N. W. 167; Dowagiac Mfg. Co. v. Schroeder, 108 Wis. 109, 84 N. W. 14. Whatever be tbe facts concerning tbe agreement or understanding between tbe ■parties with reference to tbe description of tbe land, the facts and circumstances were such as to charge tbe plaintiffs with knowledge of tbe contents of tbeir deed, and their acquiescence for so long a period of time, during which the defendants bad changed tbeir position on tbe faith of the-deed, is sufficient to bar recovery in equity. 2. Counsel for respondents makes several contentions in bis brief, which we will consider in tbeir order. His first proposition is that if a deed be given in fulfilment of a contract, and there is doubt as to tbe meaning of its terms, the contract is admissible in evidence to explain tbe deed, and that tbe court should construe tbe two instruments together. In tbe case at bar there was no contract antecedent to tbe deed. — 542 — A receipt was given by Ewens, the agent who negotiated the sale, for a small payment to bind the bargain, some time before the execution of the deed. This receipt, which was .signed by the agent, and its contents unknown to defendants, described the property as the south seventy-five feet. Defendants knew nothing of this receipt, and never saw it, until about a year after the execution of the deed, and the agent’s only authority was to sell the south half of the lot. Counsel further contends.-that deeds are an exception to the ordinary rule that written instruments are supposed to contain the whole contract and cannot be varied by parol; citing Green v. Batson, 71 Wis. 54, 36 N. W. 849; Hahn v. Doolittle, 18 Wis. 196; Brown v. Johnson, 115 Wis. 430, 91 N. W. 1016; Hurlbert v. T. D. Kellogg L. & M. Co. 115 Wis. 225, 91 N. W. 673; Beebe v. Wis. M. L. Co. 117 Wis. 328, 93 N. W. 1103. We think a careful examination of these cases will show that the rule enunciated there is not applicable here. Green v. Batson, supra, holds that, in an action to recover for balance of purchase price, it was competent to show false representations as to the quality of the lands; they being covered with snow at time of sale, and no examination could be made. So Hahn v. Doolittle, supra, holds that false representations at time of sale of note and mortgage, relied upon by purchaser of the security, may be shown. And in Brown v. Johnson, supra, the evidence was allowed upon the ground that it is, permissible to show a deed absolute on its face a mortgage, when given as security for a debt. In Hurlbert v. T. D. Kellogg L. & M. Co., supra, the defense was fraud. At p. 228 (91 N. W. 674) Winsnow, J., said: “It is always competent to show by parol that a given contract was entered into relying upon fraudulent representations; and, when a written contract does not contain the entire agreement between the parties, it is competent to show by parol or by other writings executed at the same time what the balance of the agreement or transaction was.” — 543 — It is very clear that these eases are not in point. Where parol evidence is admissible to contradict a written instrument on the ground of fraud, no reformation is necessary. The fraud opens the door for the evidence. It will he seen that the cases cited are no invasion of the general rule that parol evidence is not admissible to contradict or vary the terms of a written instrument. The plaintiffs’ suit for reformation is not brought upon the theory that parol evidence is admissible to explain the deed, but upon the theory that it is not. If parol evidence were admissible to explain or vary the terms of the deed, or show that other lands were intended to be conveyed, the plaintiffs would have no standing in a court of equity for reformation. Counsel also cites Hill v. Priestly, 52 E. Y. 635, to the point that, if a deed be indefinite or ambiguous, the acts of the parties are received as a practical construction of it; but here the deed is not ambiguous or indefinite. It is as plain as language can make it. Also Sampson v. Hudge, 13 Eecl. 260, is cited on the point that a mistake of the scrivener in drawing deed, whereby he fails to carry out the previous intention of the parties, may be corrected in equity. But, as before observed, in the case at bar the evidence fails to show any mistake of the scrivener. We must therefore hold that the court below erred in holding that the plaintiffs were entitled to reformation. By the Oourt. — The judgment of the court below is reversed, and the cause remanded with instructions to dismiss the complaint.