Opinion
No. 6999.
May 24, 1951.
APPEAL FROM THE CIRCUIT COURT OF DUNKLIN COUNTY, JAMES V. BILLINGS, J.
Ward Reeves, Caruthersville, for appellant.
Ford Ford, Kennett, for respondent.
This is a suit in equity to reform a lease contract on the ground of mutual mistake. The cause was tried in the Circuit Court of Dunklin County, Missouri. The judgment decreed the reformation of a contract as prayed for in the petition. From this judgment defendant appealed.
Plaintiff's amended petition pleads that he is the owner of 80 acres of land in Dunklin County; that he entered into a written lease with the defendant on the 22nd day of November, 1949; that said lease contract was prepared by Quintin Still of Steele, Missouri, and that it contained these words, "This lease shall begin on the 1st day of January, 1950, shall end on the 1st day of January 1952, * *"
The petition then pleads that the agreement between the parties was that said lease should terminate on the first day of January, 1951, and that "1952" was the mistake of the scrivener who prepared the contract and did not express the true intent of the parties at the time the contract was executed.
It states that Quintin Still acted for both parties in the preparation of the lease; that plaintiff was an elderly man; that his hearing was so impaired that he had great difficulty in hearing what was being said and that he could not hear ordinary conversation; that he could not write except to the limited extent of signing his name. It states that he assumed that the lease contract was the same as he had always entered into and which was customary in the locality.
The prayer is to reform the contract so as to terminate in "1951" instead of "1952", which plaintiff pleads was the real intention of the parties and that "1952" was placed in the contract by mutual mistake of the parties.
The answer of the defendant is a general denial of the grounds alleged in the petition.
The defendant, appellant, raises but one question, that is, the sufficiency of the evidence to support the judgment.
This being an equity case, it is heard de novo by this court. It is our duty to render such judgment as we find should have been rendered by the trial court giving due deference to the findings of the court below. Marshall v. Callahan, Mo.App., 229 S.W.2d 730; Brannan v. Cruce, 240 Mo.App. 977, 225 S.W.2d 374; Thomas v. Milfelt, Mo.App., 222 S.W.2d 359; Binnion v. Clark, 359 Mo. 202, 221 S.W.2d 214.
This court will review the entire record and reach its own conclusions on the evidence. Nevertheless, under the well-recognized established rule where there is a conflict in oral testimony of the parties or witnesses, the appellate court should accord due deference to the findings of the trial court. We do this because the trial court sees the witnesses and hears the testimony and can better judge the weight and value to be given conflicting testimony.
The evidence is as follows: T. T. Dildine, plaintiff, testified that he is the owner of 80 acres of land in Dunklin County, Missouri, which is occupied by Cecil Rimpson under a lease contract. He stated that he first went to see Rimpson about renting the land to him and he gave this testimony:
"Q. When did he want to rent it for, for what term. A. One year."
Plaintiff then testified that the defendant wanted a written contract and they went to the Still Cotton Gin at Steele, Missouri; that Quintin Steele (Still) and R. L. Burt on were in the gin office and that Mr. Steele (Still) prepared the contract for them. He gave this testimony:
"Q. Did you tell Mr. Steele how to fill it out. A. Who could, I don't know that when I cannot read.
"Q. But after you got to Quintin Steele what did you tell him. A. I don't know if I told him anything at all. I don't believe I told him to do anything except to fix up the papers.
"Q. Did you have any one read this paper over to you. A. No sir I did not do that."
The witness testified first, that he told Still to write the contract for one year. He then testified he didn't know whether he was present at the time the contract was written and he finally said he was present. He stated he never did tell the defendant he could have the land for two years. He said that when he took the contract home he did not have his wife look it over; that something was said about it in the next few days and he had it looked at. He gave this testimony:
"Q. You were going to sell this land. A. I had a contract for sale.
"Q. Who with A. L. P. Mitchell.
"Q. Didn't he put some money up with you. A. I don't know, but I understood he did.
"Q. Well you signed some papers when you were going to sell this land. A. I don't remember if I did or not.
"Q. When did you first recall this Cecil Rimpson two year contract. A. As soon as I found out when my wife looked it over.
"Q. Didn't the lawyer who examined this abstract call it to your attention first. A. I don't know, but I made the man an abstract deed.
"Q. Didn't Cecil Rimpson tell you he had to buy equipment to farm this land. A. No he said he had everything.
"Q. Didn't you go to Mr. Kohn's Gin and help him arrange to borrow this money for you. A. No.
"Q. Did you go there with Cecil Rimpson. A. My recollection I did.
"Q. What did you do there. A. Not anything they made me drunk or doped me or something. Cecil Rimpson said take me out in the cool. I have got to have some air. I didn't know how to deal with you high brow people.
"Q. Did they give you anything to drink. A. I don't drink.
"Q. You said they must have doped you. A. I don't know what they done but they were in a bad shape."
Plaintiff testified that he went to Kohn's Gin with defendant when defendant was arranging to buy a tractor, and he there signed defendant's note for $1500.00 to enable him to raise money to make a crop and to make a down payment on a tractor. He said he thought the note was for $400.00.
Will Dildine, son of plaintiff, testified as follows:
"Q. Did he talk to you about renting your father's 80 acres. A. Yes.
"Q. How along amount of time did he want to rent it for. A. Only one year, was all we talked about.
"Q. Did he talk about a one year contract. A. He just said he wanted it for the next year."
The witness testified he told his father he thought Rimpson would make him a good man. He testified that he didn't know anything else about the deal.
On cross-examination, he gave this testimony:
"Q. Were you present when your father and Cecil Rimpson had the agreement A. No.
"Q. You don't know of your knowledge what took place or what kind of agreement they had. A. I wasn't there when it was made.
"Q. But you don't know what the agreement was. A. No."
The witness stated that defendant talked to him along the first of November but he didn't know when the defendant and his father reached their agreement as to the lease.
Quintin Steele (Still) testified that he was a cotton ginner and farmer living in Steele, Missouri; that he had rented the 80 acres of land in question from plaintiff the year before this lease and that the period of his lease was one year; that he had known plaintiff for seven or eight years. He stated that plaintiff could sign his name and that was all. He gave this testimony:
"Q. Well did they come into your place and ask you to draw this contract. A. Yes sir.
"Q. Who had a conversation with you about signing that contract. A. To the best of my knowledge it was Cecil Rimpson.
"Q. Will ask you to state to the court if anything was said at any time by either party about the contract being for two years. A. No, sir.
"Q. Who wrote that contract. A. I did."
He testified that Mr. Dildine signed the contract; that he did not read it to him before it was signed. He testified that it was his mistake when he put Pemiscot County in the contract instead of Dunklin County and that it was his mistake when he put the north 1/2 of the northwest quarter instead of the northeast quarter into the contract. He gave this testimony:
"Q. If that shows two years instead of one year who made that mistake. A. That was mine."
On cross-examination, he gave this testimony:
"Q. Mr. Dildine gins with you. A. Yes sir.
"Q. Did you tell me that you didn't know what was in there and they gave you the information and you just typed it out. A. That is correct.
"Q. Well you don't know what was said. A. I don't remember anything about a two year contract.
"Q. You don't know anything about a one year contract. A. No sir.
"Q. So you just don't remember. A. If it had been a two year contract I could have remembered it.
"Q. Why. A. Because I tried to rent it the year before for two years and he would not rent it to me that way."
R. L. Burton testified for plaintiff that he worked at the Steele (Still) Gin Company, in the office. He gave this testimony:
"Q. Do you remember the occasion of Mr. Dildine and Cecil Rimpson, having wrote a contract there. A. Yes sir.
"Q. Will ask you if anything said about a two year contract. A. Not that I remember.
"Q. Afterwards did Cecil Rimpson bring the contract in to have the contract changed from Pemiscot County to Dunklin County. A. Yes sir.
"Q. But you made that change. A. Yes sir.
"Q. Was Mr. Dildine present at that time. A. He came and brought his contract.
"Q. At that time was anything said about the north 1/2 of the northeast 1/4. A. I did not read the contract.
"Q. And that was after the contract was written. A. Yes sir."
On cross examination, the witness testified that he was called in from the outside to witness the contract and was not present when any agreement was made about the contract.
Joe Kohn testified for the defendant that he was in the gin business at Hayti, Missouri. He stated that he had known Cecil Rimpson for years; that Rimpson did his ginning with him; that Rimpson told him he had a two year contract with plaintiff for the 80 acres of land in question. He testified that Rimpson said he would have to have a new tractor and that he informed Rimpson he could not furnish him the tractor unless he had a two year contract and that Mr. Dildine would have to endorse the note. He stated they came about the first of February; that he had the note and contract drawn up and read the same over to Mr. Dildine, plaintiff; that Mr. Dildine was hard of hearing and that he talked pretty loud so that the girl in the next room heard the conversation. He stated that he told Mr. Dildine he had a good man and that he was glad he had given defendant a contract for two years; he stated he told plaintiff that unless he had given the contract for two years and would endorse the note, he would not let defendant have the money to buy the tractor and he testified that Mr. Dildine said that was satisfactory to him. He denied that Dildine was doped. This witness testified that the contract and note for $1500.00 were read over to the plaintiff before he signed the same and that plaintiff knew what he was signing. He gave this testimony:
"Q. And you heard Mr. Dildine say that he had rented the land to Cecil Rimpson for two-years.
"Mr. Ford: We object to that as he did not testify to that.
"Q. Well Mr. Dildine did say that it was right. A. Yes sir."
On cross-examination the witness testified that plaintiff and the defendant came in before noon and it was his recollection that the transaction was completed by noon. He stated that he didn't know about his health but that he did tell them to take plaintiff home; that they may have taken him out to get some fresh air. He gave this testimony:
"Q. You say the old man was in pretty bad shape that morning. A. When he first came in the office, he didn't appear in a very bad shape until he was in the office for some time.
"Q. Can you show the court how he was shaking that day. A. Just like the palsey in one hand."
On re-direct examination, this testimony was given:
"Q. You say you repeated the two-year proposition to him. A. Yes sir.
"Q. How many times. A. Once or twice.
"Q. And he understood it. A. Yes sir."
Sylvia Clendenen testified that she was 29 years old, was employed by Joe Kohn; that she heard the conversation between Joe Kohn and Mr. Dildine. She stated it took place February 18th. She gave this testimony:
"Q. Tell the court what that conversation was about with reference to a two-year lease that Dildine had given Cecil Rimpson. A. Dildine came in with Cecil Rimpson, and he said he had a two-year lease and we figured up the mortgage that Cecil Rimpson had brought in and he gave it to us to keep for him.
"Q. But did Mr. Dildine say that he rented it to Rimpson for two years. A. Yes sir.
"Q. And you heard Dildine make that statement. A. Yes sir."
On cross-examination she stated that Cecil Rimpson left his contract with them for safe keeping. She gave this testimony:
"Q. Tell this court what was said between Cecil Rimpson and Dildine and Joe Kohn about this two-year contract. A. Joe Kohn told Dildine that he was glad that he gave him a two-year contract, because he was a good worker and Dildine said he was a good worker."
Cecil Rimpson testified that plaintiff came to him in August of last year and wanted to rent him the 80 acres of land in question; that he was farming 40 acres of land for his mother and did not want the whole eighty. He testified that plaintiff came back on more than one occasion trying to rent him the land; that he and his mother were not getting along well and he told his brother that if plaintiff would rent him the whole 80 acres of land for two years, he would let his brother farm his mother's forty. He testified that plaintiff came to his place and stopped out in the road and that he told plaintiff if he would let him have the 80 acres of land for two years, he would take it and let his brother farm the 40 acres owned by his mother. He said plaintiff, after studying awhile, said it suited him better for someone to have a lease on the place and that he did not want to rent it for one year. He testified he told plaintiff he would have to have a contract and plaintiff asked him when he wanted to make it; that he told plaintiff he was in no hurry but would have to have the contract in order to get his furnish; that he would have to buy a tractor and that plaintiff stated to him then that he would rent him the land for two years; that in November plaintiff came to see defendant and said he was ready to make the contract; that he went in the car with plaintiff to the Still Gin and there in the office Mr. Still made out the contract for two years; that at that time plaintiff agreed that the contract was to be for two years. Defendant testified that on February 18th, he went to Still to get a loan to make his crops and to buy a tractor and Mr. Still would not make the loan; that he then told plaintiff if he would go with him he could get the money from Joe Kohn; that they went to Kohn's Gin and got there about 11:00 o'clock but Mr. Kohn told them to come back about 1:00 o'clock; that they drove out in the county. He stated plaintiff did not much want to sign the note to purchase the tractor and for making his crop. Plaintiff, there, stated to Mr. Kohn that he had given him a contract for two years but he didn't want to give the rent for two years. He stated that plaintiff signed his note for $1500.00 to enable him to get the money to purchase the tractor and to make the crop.
Defendant testified that the first time plaintiff told him the contract was for one year instead of two years was when he sold the place to Mr. Mitchell. He stated that Mitchell purchased the place for $20,000.00 and had paid $10,000.00 in cash. He testified plaintiff tried to get him to give up the contract and said that if he didn't it might prevent the sale. He testified he refused to give it up and plaintiff promised him that if he would give it up he would put him over on another 40 acres of land for the next year. He said he told plaintiff, at that time, he had a lease contract for two years and that plaintiff answered "yes but that does not make any difference * * * your contract will not be any good after this year."
On cross-examination, defendant testified that it was about the first of November when plaintiff first told him he could have the land for two years. He gave this testimony:
"Q. Didn't you proposition Mr. Dildine to let you have the place for two years? A. Yes, sir.
"Q. What did he say then? A. He said that he never rented land for more than one year and he then agreed to let me have it for the two years.
"Q. And he took you to the Steele Gin? A. Yes, sir — in his car.
"Q. And he told Mr. Steele he was letting you have it for two years? A. Yes, sir — because it would make it easier for me to get my furnish and the tractor.
"Q. And after you wrote the contract you listened to Mr. Steele read that contract back to both of you? A. Yes, sir.
"Q. And then he had you all sign it? A. Yes, sir."
The witness testified that the next day he discovered the lease contract said the land was in Pemiscot County; that Mr. Dildine was at the gin that day and they, together, had the contract changed to read "Dunklin County". He definitely testified that the description in the contract had not been changed. He gave this testimony:
"Q. Has that description been changed? A. No, sir."
The plaintiff was recalled in rebuttal and denied he ever rented the land to defendant for two years. He denied that he told Joe Kohn he had given a contract for two years or that anything was ever said at Joe Kohn's place about a two year contract. He denied he ever told defendant he could have the land for two years. He admitted he had contracted to sell his farm but he denied he ever told defendant that if he would give up the two year contract he could have half of Will's land.
The written lease, which was made a part of the petition, contained a provision, "said cutting of fence rows and ditch banks shall be done by said lessee in each year of said term, not later than the 20th day of August."
In this opinion we will refer to appellant as defendant and to respondent as plaintiff.
In Employers' Indemnity Corp. v. Garrett, 327 Mo. 874, 38 S.W.2d 1049, 1054, the court states the following law: "* * To warrant the reformation of a contract by altering or expunging some of the terms contained in it, there must be a mutual mistake, that is, a mistake shared in by both parties. Green v. Stone, 54 N.J.Eq. 387, 34 A. 1099, 55 Am.St.Rep. 577."
On the same page, the court makes the following statement of law: "Assuming that Garrett accepted the deed without knowledge of the assumption clause, and that its insertion was as to him a mistake, what about Kaltenbach? Was he in ignorance of that provision of the deed?"
The rule is also laid down in this case on page 1054 of 38 S.W.2d as follows: "The evidence offered to establish a mutual mistake, as the ground for reforming a written instrument must be most clear and convincing. Dougherty v. Dougherty, 204 Mo. [228] 229, 239, 102 S.W. 1099. Courts of equity do not grant the high remedy of reformation upon a probability, or even upon a mere preponderance of evidence, but only upon a certainty of the error, 2 Pomeroy's Eq. Jur. § 858."
In Binswanger v. Employers' Liability Assur. Corp., 224 Mo.App. 1025, 28 S.W.2d 448, 453, the court states the law thus: "We are not unmindful of the rule that in order for a court of equity to reform a written instrument on the ground of mistake the testimony sustaining the court's action must be clear, cogent and convincing and leave no room for reasonable doubt. Robinson v. Korns, 250 Mo. 663, 675, 157 S.W. 790; Wilhite et al. v. Wilhite, 284 Mo. 387, 395, 224 S.W. 448; 5 Pomeroy's Equity Jurisprudence (2d Ed.) p. 4740."
In Net Realty Investment Co. v. Dubinsky, Mo.App., 94 S.W.2d 1108, 1117, the court states the law:
"The broad ground on which a court of equity will reform an instrument is that, through a mutual mistake of the parties, it does not accurately set forth the terms of the agreement actually made. A mistake justifying the reformation of an instrument must have been made in drawing the instrument and not in making the contract; that is, it must occur in reducing to writing the contract upon which the parties agreed. * * *
"The proof of a mutual mistake to warrant the reformation of an instrument must be clear, convincing, and satisfactory. * * *"
In Stephens v. Stephens, Mo.Sup., 183 S.W. 572, 573, the court states the law thus: "Where the real contract actually made by the parties to a deed is not expressed in the instrument by mutual mistake, equity will reform the deed and write in it by decree the contract which it should have contained, but only upon evidence so clear and convincing as to leave no reasonable doubt either of the mistake or its mutuality. Nothing less will justify the alteration of a written conveyance. In such cases, if the mistake was caused by the act of the draughtsman, it must further be established that he was the agent of both parties; otherwise there would be no proof of its mutuality, and that indispensable fact would have to be shown by other evidence. Robinson v. Korns, 250 Mo. [663] loc. cit. 675, 157 S.W. 790; Dougherty v. Dougherty, 204 Mo. [228] loc. cit. 238 et seq., 102 S.W. 1099."
In St. Louis 221 Club v. Melbourne Hotel Corp., Mo.App., 227 S.W.2d 764, 768, the court states the law: "`Courts of equity have from time immemorial exercised power to reform written instruments so as to make them speak the real agreements made between the parties in cases in which by the mistake or misprision of the scrivener the writing fails to do so, * * *.' A lease which fails to express the intention of the parties should be reformed. Smith v. Smith, 289 Mo. 405, 233 S.W. 183. The rule is the same as to a deed or any other written contract. General Refractories Co. v. Howard, 328 Mo. 1139, 44 S.W.2d 65; Brumley v. McCormack, Mo.App., 17 S.W.2d 597."
Considering this case in the light of the law as above set out we find that the trial court erred in reforming the instrument because the evidence is insufficient to support the court's decree.
Plaintiff offered but two witnesses whose testimony supports his contention. T. T. Dildine, plaintiff, testified that he approached defendant to lease him the land in question first. He stated that he walked over to defendant's house, where defendant was picking cotton, to talk to him about the lease. He stated they went to the Steele (Still) Cotton Gin at Steele, Missouri, to prepare the contract and then he gave this testimony:
"Q. Did you talk to Mr. Steele about this contract. A. I don't know if I did or not.
"Q. When did he talk about the day of the renting. A. I don't know about that.
"Q. You were there. A. I don't know if I was or not."
He then stated that he was there. He stated that Mr. Steele had written his contracts for a year or two before.
"Q. What did you tell them about the contract being written. A. I told him the darkey wanted a contract written.
"Q. How long did you tell Mr. Steele to write the contract for. A. One year.
"Q. Did you ever tell him that he could have this farm for two years. A. No sir.
"Q. Did you at any time tell Mr. Steele that. A. No sir."
On cross-examination plaintiff gave this testimony:
"Q. But after you got to Quintin Steele what did you tell him? A. I don't know if I told him anything at all. I don't believe I told him to do anything except to fix up the papers.
"Q. Did you have any one read this paper over to you. A. No sir I did not do that."
He testified when he got home he did not have his wife look over the papers but that she generally did look over his papers. He stated the contract was made in November, 1949. He gave this testimony:
"Q. You were going to sell this land. A. I had a contract for sale.
"Q. Who with. A. L. P. Mitchell.
"Q. Didn't he put some money up with you. A. I don't know, but I understood he did.
"Q. When did you first recall this Cecil Rimpson two year contract. A. As soon as I found out when my wife looked it over.
"Q. Didn't the lawyer who examined this abstract call it to your attention first. A. I don't know, but I made the man an abstract deed."
This witness first testified that defendant did not tell him he needed equipment to farm the land but he admitted going to Kohn's Gin and signing a note for the defendant with which to purchase a tractor and for money to make a crop. This note was for $1500.00 and was to be paid by installments, so much the first year and so much the second year.
While plaintiff does state that he did not rent the land but for one year, yet he says that he doesn't know whether he told the man who prepared the lease anything except to prepare it. The evidence shows that the man who prepared the lease, Mr. Still, had rented this same land from plaintiff the year before, had been preparing leases prior to this one for the plaintiff and was the place where plaintiff had his cotton ginned.
We submit that plaintiff's testimony is so indefinite as to not establish a direction to the scrivener that the lease was to be only for one year and too indefinite to establish the terms of the lease contract; especially when taken in connection with the fact that plaintiff admits that he sold the land and had to give possession thereof and the fact that he and the defendant met at the gin the day after the lease was written and corrected a mistake in the lease as to description, he says as to the county and as to the description of the land itself. We think the evidence clearly shows that this plaintiff made no contention about the term of the lease until he had sold his property.
Quintin Still testified that he was a cotton ginner and farmer; that he had been a tenant of T. T. Dildine and farmed the 80 acres of land in question. He testified he had prepared one contract for plaintiff the year before; that he had known him seven or eight years; that he did a good deal of business with him. He stated plaintiff could sign his name and that was all. He gave this testimony:
"Q. Who had a conversation with you about signing that contract. A. To the best of my knowledge it was Cecil Rimpson."
He then testified that there was nothing said about a two year contract; that he wrote the contract and that the parties signed it. He stated he did not read the contract to plaintiff before it was signed. He said he made a mistake as to the county in which the land was located and put Pemiscot instead of Dunklin county and he also stated that he made a mistake as to the description of the land and that both mistakes were his. Then, on cross-examination, he gave this testimony:
"Q. Did you tell me that you didn't know what was in there and they gave you the information and you just typed it out. A. That is correct.
"Q. Well you don't know what was said. A. I don't remember anything about a two year contract.
"Q. You don't know anything about a one year contract. A. No sir."
The witness then tried to reason that he thought the provision in the two year contract was a mistake because he had tried to rent the land the year before for two years and plaintiff would not give him a lease for that time. He stated he thought if it had been for two years it would have impressed the fact on his mind so that he would remember, therefore, he thought it was his mistake.
Now we submit that this kind of proof does not meet the rule required by courts of equity that the testimony be clear, cogent and convincing. Courts of equity do not grant the high remedy of reformation upon a probability or even upon a mere presumption of evidence, but only upon a certainty of the error.
The witness definitely states that he wrote in the contract what the parties told him to write; that he remembers nothing about a two year or a one year contract. This testimony, in the light of the fact that he testified that it was his recollection that the defendant was the one who talked to him about the contract and the defendant states they told Still to write the contract for two years, does not establish the plaintiff's contention that the scrivener made a mistake when he made the termination of the contract two years.
Plaintiff's second witness was his son, Will Dildine, who testified that he recommended defendant to his father as a good man for a tenant; that he was not present when the lease contract was negotiated and was not present when the lease contract was drawn. Therefore, he testified to nothing that throws any light upon the issues involved.
R. L. Burton testified for plaintiff that he worked at the Steele (Still) Gin Company, at the time the contract in question was prepared; that Cecil Rimpson and T. T. Dildine came back and had a change made in the contract as to the county in which the land was located. He stated he did not read the contract and didn't know about the description of the land. He said he was called in from the outside to witness the change; that he was not present when any agreement was made about this contract. This was all of the testimony offered by plaintiff.
We hold this testimony does not meet that degree of proof which requires the evidence to be clear and convincing so as to leave no reasonable doubt either of the mistake or its mutuality. Nothing less will justify the alteration of a written conveyance. Stephens v. Stephens, supra; Feeler v. Gholson, Mo.Sup., 71 S.W.2d 727, 728.
In Feeler v. Gholson, supra, the law is stated:
"`* * * The evidence must be such as to leave no reasonable doubt upon the mind of the court as to either of these points. The mistake must be mutual and common to both parties to the instrument. It must appear that both have done what neither intended.' * * *
"`A mutual mistake in a written instrument presupposes a prior or preceding agreement between the parties. To show the mutual mistake in the written instrument, the preceding agreement must ex necessitate be shown.' Dougherty v. Dougherty, 204 Mo. 228, loc. cit. 237, 102 S.W. 1099, 1101."
We find plaintiff's testimony, as to the prior agreement, indefinite and uncertain and wholly insufficient to establish the fact that the lease agreement was to be for one year.
Defendant's testimony is definite and certain that the prior agreement was that the lease contract was to be for two years. Defendant testified that it was definitely agreed between himself and plaintiff that he was to have a written lease on the 80 acres of land in question for two years; that plaintiff took him to the Still Gin at Steele, Missouri, and that they, there, informed Mr. Still to prepare the lease agreement for a period of two years. This testimony is supported by the written lease, itself, not only by the clause that contains the two year provision, but the clause which provides that defendant shall cut the fence rows and ditch banks each year, not later than the 20th day of August.
Defendant's contention is further supported by the testimony of Mr. Kohn, who financed defendant for a period of two years for funds to make a crop and to purchase a tractor. He testified that defendant, when he came to him to get financed, stated he had a lease for two years; that defendant brought plaintiff to his place of business to make arrangements for such finances and that he, there, told plaintiff he was glad he had let defendant have the 80 acres of land for two years and that plaintiff said defendant was a good man. This witness testified that he would not have furnished the sum of $1500.00 to defendant had the lease been for one year and the furnish agreement, itself, shows that it was to be repaid in two installments, one to be made in 1951 and one in 1952, and that plaintiff signed the note obligating himself to see that these two payments were made.
Sylvia Clandenen definitely testified that plaintiff stated the lease was to be given for two years and that she read the finance agreement, made by plaintiff and defendant with Mr. Kohn, over to plaintiff before he signed the same and that he understood the conditions thereof.
We think this positive testimony, given in behalf of defendant, when weighed with the indefinite and uncertain testimony on the part of plaintiff, justifies us in saying that plaintiff has not established the fact that there was a prior agreement between the parties that the lease was to be for one year; that there was a mutual mistake common to both of the parties of the instrument.
There is one further matter in evidence which we think has much bearing on the case and that is that plaintiff had possession of the contract for many months, during which he had his wife inspect it, and yet he did nothing about the matter until he sold his property and had to give possession thereof.
We also find that plaintiff's evidence is insufficient to show that the scrivener who prepared the contract was the agent of both the parties. The testimony is undisputed that when the lease agreement terms were reached between plaintiff and defendant, plaintiff called the Still Gin and selected the man who should prepare the contract. Mr. Still was a former tenant of plaintiff. He had done much business with plaintiff. He had prepared other lease agreements for plaintiff, at lease one other agreement, and he was in all respects plaintiff's agent in this matter. There is no showing that defendant did anything but request a written instrument stating the terms of the lease and that he asked that it be made for two years.
We think the burden of proof, to show by clear and convincing testimony that the scrivener was the agent of both parties in preparing the instrument, was upon plaintiff. Without the showing that he was the agent of both parties, there would be no mutuality unless shown by other testimony as to the alleged mistake. We think the testimony wholly fails to justify the trial court in reforming this written instrument: first, because it fails to establish that the prior agreement between the parties was that the lease was to be for two years, and secondly, because it fails to establish that the scrivener was the agent of both parties. There certainly was no testimony to show that the defendant was mistaken as to the terms of the lease contract as expressed in writing and, therefore, the testimony wholly fails to show a mutual mistake.
Judgment reversed and the trial court instructed to enter judgment for defendant.
VANDEVENTER, P. J., and BLAIR, J., concur.