Zarecki v. Guarantee Realty Co.

Leaking, V. C.

To entertain a substantial doubt touching the truth of the material averments of a bill of this nature is to deny the relief sought; but in this case I am convinced that there can be no real doubt touching the material facts. There is conflict of testimony of witnesses, but the truth is too obvious to be doubted.

The type-written translation of the contract which had been executed in the Polish language, as that contract had been interlined after its execution, was admittedly made the basis of the final contract. The interlineations in that type-written translation were undoubtedly determined upon at a conference *490 between Harry Varbalow, representing defendant company, and complainant Michael Zarecki, assisted by Mr. Gulcz and Mr. Oinkowski. The testimony of the two latter witnesses, who have no pecuniary interest in this controversy, is that all the modifications of the type-written translation which were then agreed upon were embodied in it by erasures and interlineations, and that a modification of the depth of the building was neither agreed upon nor even suggested. The contract that was agreed upon on that occasion was undoubtedly the type-written translation as modified by ink erasures and interlineations made at that time. Both of these witnesses have also testified that they then retyped this interlined document with a purpose to accurately reproduce it; that one dictated while, the other operated the typewriter, and that by error of one of them—and not by intention—the depth of the building was made forty instead of forty-four feet. If this is true—and of its truth there can be no real doubt—the idea of a building forty feet in depth, or of any depth except forty-four feet, never formed any part of the negotiations or entered the minds of any of the parties prior to the meeting at which the signatures were affixed to the contract. At that meeting the parties undoubtedly met with a mutual purpose to execute a contract for a building forty-four feet in depth, as previously agreed upon. Whether the contract was read at that meeting or not is of little importance, for it is inconceivable that complainants at that time voluntarily and knowingly waived four feet of the depth of the building as already agreed upon without comment or protest, and if defendant’s representatives at that time observed the change in the depth of the building, it was their plain duty, under the then existing circumstances, to call complainants’ attention to that change. Complainants undoubtedly signed the contract believing it to be for a building forty-four feet in depth as had been previously agreed upon; defendant’s representatives either did the same or concealed the fact that they had observed the error. In either case the right of reformation would obtain. Simpson Plumbing Co. v. Geschke, 76 N. J. Eq. (6 Buch.) 475, 478; S. C. on appeal, 78 N. J. Eq. (8 Buch.) 306.

*491 There is conflict of testimony touching the subsequent conduct of the parties which might well cause a court to hesitate in granting the form of relief here sought if that relief were to any considerable extent dependent upon confidence in the testimony of complainant Michael Zarecki. But I do not believe the testimony of either Mr. Goldstein or Mr. Zarecki touching those matters. The truth touching those transactions is reasonably obvious; it is not, in my judgment, as stated by either party to the transactions.

I will advise a decree of reformation in accordance with the prayer of the bill.