Jilek v. Zahl

Wiwslow, O. J. It may well he that the result reached in this case is not inequitable, hut it is very clear that there-has been misconception of the real nature of the controversy. A written contract to convey three forties of land appears to-have been made by Jileh running to Adelaide Zahl. On its. face it is a perfectly good contract and under familiar rules it excludes evidence of a parol contract contradicting or varying its terms. It may be reformed for mistake and enforced' as reformed, but until reformed its provisions are controlling. The only way to reform it is by action in equity brought for the purpose of reforming it and enforcing it as reformed. Casgrain v. Milwaukee Co. 81 Wis. 113, 51 N. W. 88; Garage E. M. Co. v. Danielson, 156 Wis. 90, 144 N. W. 284. So it is apparent that this action should have been brought in equity, and it is equally apparent that when brought at law no recovery should have been had. Until quite recently the-plaintiff would have been thrown out of court and compelled to commence a new action because of the ironclad rule that an amendment could not be allowed which would change the-action from one at law to one in equity. Charmley v. Charmley, 125 Wis. 297 (103 N. W. 1106) and cases cited at page 302. This rule has been changed, however, by-sec. 2669a, Stats, (ch. 353, Laws 1911), and no miscarriages of justice of this nature need now occur. Further progress along the same line has been made by sec. 2 of ch. 219 of the-Laws of 1915 (sec. 2836b, Stats. 1915), which went into effect after the trial in the present case, and which provides in the most comprehensive way for amendments in cases like the161 present and for tlie continuance of the action or proceeding in the proper court and under the proper form of action in case of mistake in the form or substance of the remedy originally sought. The beneficent effect of this provision can hardly be overestimated. It means that it will no longer be necessary to kick the plaintiff out of the back door of the courtroom (with costs) in order that he may re-enter by the front door in a different garb. It means that we are losing interest in the mere niceties of procedure and gaining interest in the accomplishment of justice “completely and without denial, promptly and without delay” (Const, art. I, sec. 9). Being an act regulating procedure, this act affects pending litigation except so far as rights may have become vested, and in case of the reversal of a judgment there is no vested right in the procedure in force at the time the judgment was rendered. As we have seen, the action should have been brought in equity. Whatever be our conclusion as to the action which the trial court should have taken under the law existing at the time of the rendition of the judgment, there can be no doubt as to the proper course now. The action must be continued as an action in equity to reform and enforce the land contract; Adelaide Zahl and the trustees of the Baldwin estate must be brought in by order of court as necessary parties to a complete determination of the matters in controversy; the plaintiff must be required to amend his complaint in accordance with the facts as he claims them to be, and the defendants should be allowed to make answer thereto as they may be advised, and the action should proceed to trial before the court with all convenient speed at such time as the trial court shall designate. It is undoubtedly the rule that the evidence must be clear and convincing in order to justify reformation of a written contract, and it is equally true that so far as direct testimony is concerned there is in the present • [162] case tbe oath of the plaintiff against the oath of the defendant, but no reason is perceived why there may not be corroborating circumstances proven which will satisfy the rule even though the number of direct witnesses be equal. It should be the aim of the trial court and of all parties to expedite the second trial of the case so that the delay will be for as brief a period as possible. By the Court.- — Judgment reversed, with costs, and action remanded for further proceedings in accordance with this opinion.