Kessel v. Kessel

Reformation of written instruments. Where, in an action for the reformation of a written agreement and of a mortgage given to secure performance thereof, it appeared by the testimony on the part of the plaintiffs that it was verbally agreed between them and the defendant that, in consideration of their conveying to him their farm, he should support them at the old home during life, and pay them an annuity of $150 per year, or, in case they should become dissatisfied with his treatment, he should pay the annuity and furnish them with certain provisions, etc., and they should have the option to leave his care, and, in that case, he should pay them $2,500, and the whole agreement was to be put into writing and the performance thereof secured by a mortgage, but the papers were prepared in English, not in accordance with the directions of the plaintiffs, and were not understood by them, they being aged Germans, unable to understand that language, and did not contain the entire agreement, nor did the mortgage secure the payment of any sum except the $150, in case of disagreement, leaving entirely unsecured the performance of the other stipulations and the payment of the $2,500; and such testimony as to the directions given was corroborated by the notary who drew the papers, and was not denied by the defendant,— held, that the written agreement and the mortgage should be reformed so as to express the actual intention of the parties.

APPEAL from tbe Circuit Court for Washington County. Tbe action is to reform certain written instruments. On January 24, 1887, tbe plaintiffs, Peter Kessel and wife, conveyed to their son, the defendant Peter Kessel, Jr., their farm in Washington county, containing 140 acres of land, on which they had resided for twenty-five years, together with certain personal property thereon. The farm was worth $8,000, and the personal property $1,000, and was all the property the plaintiffs owned. Plaintiffs were each about seventy-five years of age, and infirm in health, when they, made this conveyance, the plaintiff Peter being also very deaf. They were G-ermans, and neither of them could speak or understand the English language. Peter, Jr., was then thirty-three years of age, and, while not an imbecile, was weak in intellect and quite deaf, and was dependent upon his father to manage his business affairs. Tie had always lived with his parents, and worked on their farm without other compensation than his maintenance. The consideration for such conveyance was attempted to' be expressed in a written agreement executed at the same time by the father and son, and in a mortgage executed to the plaintiffs by the son on the lands so conveyed, which purports to have been given as security for the performance of a stipulation in the agreement to pay the plaintiffs an annuity of $150 during their joint lives, and one half that, sum to the survivor of them. It does not purport to secure’ any other stipulation in such agreement. The agreement, as written and executed, binds Peter, Jr.„ his heirs and assigns, to maintain his parents during their lives; tó do everything to make them comfortable; to provide them two specified rooms in his house; and to take, the best care of them as long as they should live. It also contains the following stipulation: “ The said parties of the second part [the plaintiffs] also agree, for the consideration of $2,500, by note secured by mortgage, now held by said second parties against said first p^rty {Peter, Jr.~\, that, if said first party do his duties as above mentioned, said note and mortgage is to be null and void.” It further provides. that, in case of disagreement between the parties, or if the plaintiffs should become dissatisfied with the treatment they receive from their son, the latter should pay them annually, on December 1st, $150, and furnish them fuel prepared for use, and certain specified articles of food, and also keep any horses and cows they may have. In case of the death of either plaintiff, the survivor was to have one half the money and articles thus to be furnished. At the same time Peter, Jr., gave his note for $100 to each of two unmarried sisters, and afterwards paid the plaintiffs $150 on or about December 1, 1881, and $150 oh or about December 1, 1888. The plaintiffs remained with their son until August, 1S89, when, becoming dissatisfied with the treatment they received from Mm and his wife (he having married after such agreement was executed), they left his house, and have not since lived with him or received any support from him. The agreement and mortgage are written in English, and the plaintiffs did not learn any of their contents, further than was explained to them by the notary when the same were drawn and executed, until they left the house of their son, when the plaintiff Peter, Sr., had them examined, and then first learned their actual contents. He thereupon brought this action, alleging in his complaint that the instruments do not express the contract made by the parties in certain specified particulars, and praying that they be reformed to express the contract as actually made. The defendants allege in their answer that the.agreement and mortgage contain the contract of the parties as it was made, except as to the two $700 notes which were given to the sisters pursuant thereto, and except that the mortgage should have been drawn to secure the performance of all the stipulations contained in the agreement to be performed by Peter, Jr. The answer also contains a counterclaim for the two payments of $150 each, in which it is alleged that Peter, Jr., was informed by one of bis sisters that tbe agreement -required bim to make sucb payments, when in fact it does not, and that be was misled by sucb statement of bis sister. An accounting is prayed, and that sucb payments, be allowed Peter, Jr. It is unnecessary to state the allegations of tbe complaint as to wbat was tbe real contract of tbe parties, for that is stated more fully in the findings of fact. Sucb findings contain tbe facts above stated, and on tbe subject of tbe actual agreement and understanding of tbe parties are as follows: “ Tbe plaintiffs were to convey said real estate and personal property to tbe defendant Peter, and in consideration of tbe said conveyance tbe said defendant Peter was to give his promissory notes in tbe sum of $700 to each of two daughters of tbe plaintiffs, payable three years after said date, with interest at tbe rate of five per cent, per annum, and to enter into an agreement with tbe plaintiffs to support them, during tbe term of their natural lives, care for them in case of sickness, and in addition thereto to pay to them tbe sum of $150 per annum, tbe said annuity to be due and payable on tbe first day of December in each and every year; that in case of a disagreement between them, or in case that said plaintiffs should become dissatisfied with the treatment received by them at tbe bands of said defendant Peter, then, and in sucb case, said defendant Peter was to pay said plaintiffs said sum of $150 annually, and furnish them with tbe provisions, rooms, wood, feed, and care of tbe horses and cows of said plaintiffs, as provided in tbe written contract hereinafter mentioned, and that, in case of the death of either of said plaintiffs, tbe survivor of them should receive but one half of said sum of $150, and said articles to be so furnished as aforesaid; and it was further agreed that, in case of a disagreement between said parties or dissatisfaction on tbe part of said plaintiffs with tbe treatment by said defendant Peter, it should be optional with said plaintiffs to remain with said defendant Peter, and receive said support and annuity, or said' annuity and the several articles of support hereinbefore mentioned, or to leave his care and suppoiff as aforesaid; and in case they should leave his care, then said defendant Peter was to pay them the sum of $2,500, and which said sum they were to receive in full satisfaction and payment of their right to support and annuity under said agreement; which said agreement was to be put in writing, and in all of the provisions, except the payment of said notes, was to be secured by a mortgage upon said real estate, to be given by the defendant Peter to the plaintiffs.” Judgment for plaintiffs was thereupon ordered and entered, reforming the written agreement and mortgage so that the same shall express the contract of the parties as the court thus found the same to be. The defendants appeal from the judgment. contended, Liter alia, that the evidence of mistake fell far short of that clearness and certainty required in order to justify the court in reforming the instruments in question. Lake v. Meaeham, 13 Wis. 362; Wells v. Ogden, 30 id. 637; Lmassar v. WasKburne, 50 id. 200; Newton v. Ilolley, 6 id. 592; Meiswvnkel v. St. Paul F. <& M. Ins. Go. 75 id. 14:7.