¶14 Reformation of a written instrument is appropriate when the instrument fails to express the intent of the parties because of the mistake of one party coupled with fraud or inequitable conduct of the other. La Rosa v. Hess, 258 Wis. 557, 559, 46 N.W.2d 7 (1951); Hennig v. Ahearn, 230 Wis. 2d 149, 174, 601 N.W.2d 14 (Ct. App. 1999). Reformation of a written instrument need not be based on statements which constitute material misrepresentations. It may be a sufficient basis for contract reformation that one party is mistaken as to a material term of a contract and the other knows of the mistake but fails to point it out. Hennig, 230 Wis. 2d at 175.
Clark v. Moru (1963), 19 Wis.2d 503, 506, 120 N.W.2d 888; Findorff v. Findorff (1958), 3 Wis.2d 215, 224, 88 N.W.2d 327; Langer v. Stegerwald Lumber Co. (1952), 262 Wis. 383, 391a, 55 N.W.2d 389, 56 N.W.2d 512.Holton State Bank v. Greater Milwaukee Food Merchants Asso. (1960), 9 Wis.2d 95, 99, 100 N.W.2d 322, 79 A.L.R.2d 1176; La Rosa v. Hess (1951), 258 Wis. 557, 559, 560, 46 N.W.2d 737; Kadow v. Aluminum Specialty Co. (1948), 253 Wis. 76, 78, 33 N.W.2d 236.Badger Savings Building Loan Asso. v. Mutual Building Savings Asso. (1939), 230 Wis. 145, 152, 283 N.W. 466; Reed v. Harvey (1961), 253 Iowa 10, 22, 110 N.W.2d 442; Smith v. Bear (2d Cir. 1956), 237 F.2d 79, 86, 60 A.L.R.2d 1119; Restatement, 1 Contracts, p. 333, sec. 238 (c); 3 Corbin, Contracts, p. 431, sec. 580.
This court has often held that agreements may be reformed between the original parties in a suit in equity where the true intent of the parties is not embodied in the written agreement because of a mutual mistake. Kovacs v. Hoag (1953), 263 Wis. 139, 56 N.W.2d 829; Shearer v. Pringle (1930), 203 Wis. 164, 233 N.W. 623; La Rosa v. Hess (1951), 258 Wis. 557, 46 N.W.2d 737. These cases are not applicable because there is no evidence in this record to show the full waivers were given by mutual mistake. See Breeden v. Breeden (1959), 6 Wis.2d 149, 93 N.W.2d 854.
The deed so provided but the plaintiff and his mother did not understand all the implications thereof. In La Rosa v. Hess (1951), 258 Wis. 557, 46 N.W.2d 737, this court held an instrument will not be reformed if the only grounds shown are that one party misunderstood the legal effects of the instrument or because each of the parties gave his own interpretation to it. This is another unfortunate case of persons following the advice of another lay person rather than obtaining competent legal advice from an attorney.
It is elementary in Wisconsin that agreements may be reformed in a suit in equity where the true intent of the parties is not embodied in the agreement as reduced to writing because of some mutual mistake. La Rosa v. Hess, 258 Wis. 557, 46 N.W.2d 737; Langer v. Stegerwald Lumber Co. 262 Wis. 383, 55 N.W.2d 389; Lentz v. Dostal, 212 Wis. 81, 249 N.W. 174; Shearer v. Pringle, 203 Wis. 164, 233 N.W. 623. Robert W. Hoag testified that he drafted the exchange agreement in the absence of the Kovacs but that it was the intention that the owners of the one property were to become the owners of the other and vice versa.