Hook v. Craighead

Equity — Mistake.—A court of equity will reform an instrument which, by reason of a mistake, fails to execute the intention of the parties, as well upon an equitable defence set up in an answer, as in a suit brought directly for that purpose. (Leitensdorfer y. Delphy, 15 Mo. 160. Affirmed.)

Appeal from Callaway Circuit Court. There is but one point presented by the record for the opinion of this court: Whether a mistake in a title bond for the conveyance of real estate can be reformed and corrected, and a specific execution be decreed of the contract so reformed ? The point, however, which is attempted to be raised by the motion, is: Whether parol evidence can be admitted to prove a variation by mistake in a written contract, required by the statute of frauds to be in writing, when offered by a party seeking a specific execution of the contract ? Although this point is not properly raised by motion, as the allegations in the answer might be supported as well by written as oral evidence, yet, as the issue, if the cause is reversed, will be supported by oral testimony, such should be the essential point for adjudication. It is admitted that there seems to be a distinction in the English equity, law between the admission of oral testimony, on behalf of a plaintiff seeking to show a mistake, and to have the mistake corrected and specific performance of the contract so reformed, and on behalf of a defendant resisting a specific performance — it being-excluded when offered by the plaintiff, and admitted when offered by the defendant. Such is the law as declared in the case of Wollam v. Hearn, 7 Yesey, 211; 15 Yesey, 516 ; 1 Sch. & Lef. 38, 39. This doctrine has not met with approbation in this country. It is condemned by Judge Story, who says that “ it is extremely difficult to perceive the principle upon which such decision can be supported consistently with the acknowledged exercise of jurisdiction in the court to reform written contracts and to decree relief therein.” (1 Sto. Eq. § 161; Keisselbrack v. Livingston, 4 Johns. Chy. 148; Gillespie v. Moon, 2 Johns. Chy. 585 [cited by Gamble, J., in Leitensdorfer v. Delpliy, 15 Mo. 167]; Brown v. Lynch, 1 Paige, 147 ; 3 Paige, 313 ; 6 Paige, 347 ; Smith v. Greeley, 14 N. H. 378 ; Peterson v. Grover, 20 Me. 363 ; Governour v. Titus, 1 Edw. 477 ; Flagler v. Pleiss, 3 Rawle, 345; Wood-son v. Havilancl, 18 Conn. 101; Taylor v. Luther, 2 Sumn. 228, cited and approved in Johnson v. Huston, 17 Mo. 61.) In the case of Johnson v. Huston (17 Mo.), the case of Leitensdorfer v. Delphy (16 Mo. 167) is approved, and the following language is used: “A party to an instrument may, by parol evidence, show a mistake, as well when he is a defendant resisting the enforcement of the contract, as in a direct proceeding to reform it and correct the mistake.” (17 Mo. 62.) The reason assigned for the distinction between the admission of such evidence on behalf of a defendant resisting a specific performance, and its rejection when offered by a plaintiff seeking it, seems to surrender the entire point in controversy, because in both instances the oral testimony is admitted to vary the contract; and the same policy which would render its admission proper to prevent injustice in the one case, should likewise render it admissible in the other ; for, surely, if there is no remedy in equity for a plaintiff standing in such a predicament, there would be none at law, and he would, therefore, be remediless. Such a rule of discrimination in a court of equity, between parties litigant, would subject it to the reproach of partiality, and that justice was not weighed in even scales. It will be observed, also, that the case of Wollam v. Hearn, 7 Vesey, 211, regarded as the leading case on this subject, equally applies to the case of fraud.