Opinion
No. 36702.
March 8, 1948.
1. REFORMATION OF INSTRUMENTS.
Where one party relies on other to draw instrument according to terms of agreement and other party, or his agent, or scrivener selected by him, either through mistake or fraud fails to do so, first party's failure to read instrument before signing is not negligence precluding relief by reformation.
2. REFORMATION OF INSTRUMENTS.
Proof to sustain bill to reform must establish essential allegations beyond reasonable doubt.
3. REFORMATION OF INSTRUMENTS.
In suit for reformation of contract, fraud of agent and scrivener of defendant in drawing contract cannot be proved by single witness whose testimony is in many important details of doubtful character, while that in opposition is clear, definite and positive throughout.
4. REFORMATION OF INSTRUMENTS.
In suit for reformation of written land contract which was prepared by agent of defendant and which complainant allegedly signed without reading, evidence was insufficiently clear and positive to establish mistake or fraud in reservation of entire mineral interest.
APPEAL from the Chancery Court of Jefferson Davis County.
Heidelberg Roberts, of Hattiesburg, for appellant.
A person cannot avoid a written contract which he has entered into on the ground that he did not read it or have it read to him, and that he supposed its terms were different, unless he was induced not to read it or have it read to him by fraudulent representations made to him by the other party, on which he was entitled to rely.
Alliance Trust Co. v. Armstrong, 185 Miss. 148, 186 So. 633; Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763; J.B. Colt Co. v. Odom, 136 Miss. 651, 101 So. 853; Continental Jewelry Co. v. Joseph, 140 Miss. 582, 105 So. 639; Gunter v. Henderson Molpus Co., 149 Miss. 603, 115 So. 720; 12 Am. Jur. 629, Sec. 137.
Unless a written contract is ambiguous, parol evidence is not admissible to prove that one of the parties actually intended something in conflict with the written agreement.
Allen Co. v. Monroe County Hay Exchange, 123 Miss. 502, 86 So. 297.
Where the language of the contract does not admit of two meanings, a party thereto cannot assert that he misunderstood the contract.
Home Ins. Co. of New York v. Cavin, 162 Miss. 1, 137 So. 490.
He who alleges fraud must state the facts upon which the fraud is based, and prove them.
Otts Finance Co. v. Myers, 169 Miss. 407, 152 So. 834; Metropolitan Life Ins. Co. v. Hall, 152 Miss. 413, 118 So. 826; Willoughby v. Pope, 101 Miss. 808, 58 So. 705.
Proof of fraudulent intent must be clear and convincing.
Dowling et al. v. Whites Lumber Supply Co., 170 Miss. 267, 154 So. 703.
A person may not plead ignorance of the covenants of a deed executed to him after it has been accepted and recorded, as a ground for defeating the force and effect of such covenants, in the absence of any fraud practiced by the grantor preventing the grantee from familiarizing himself with the deed.
Germania Life Ins. Co. v. Bouldin, 100 Miss. 660, 56 So. 609; Harkreader v. Clayton, 56 Miss. 383; American Oil Co. v. Williamson, 154 Miss. 441, 122 So. 488.
There is a strong presumption that parties who have reduced their agreement to writing have deliberately, adequately and honestly expressed their agreement therein. The evidence to reform such an instrument, to correct alleged mistakes therein or to vary the terms thereof must be clear and convincing — so clear as to be almost free from doubt.
Jones v. Jones, 88 Miss. 784, 41 So. 373; McCubbins v. Morgan et al., 199 Miss. 153, 23 So.2d 926; Frierson et al. v. Sheppard et al., 201 Miss. 603, 29 So.2d 726; Griffith's Mississippi Chancery Practice, p. 658, Sec. 589.
Parol testimony to reform must be received with "great caution and distrust."
Watson v. Owen, 142 Miss. 676, 107 So. 865, 866; Frierson v. Sheppard, supra.
The action of the court was right so far as concerns the prayer for specific performance. There was nothing in writing which described or identified the lands, or stated the total amount of the purchase price, or the terms of payment; and, in this State, part performance does not take the case out of the statute, which requires a contract for the sale of lands to be in writing.
Milam v. Paxton et al., 160 Miss. 562, 134 So. 171; Lewis v. Williams, 186 Miss. 701, 191 So. 479; Code of 1942, Sec. 264 (c).
An agent has the right to testify on the witness stand as to the scope of his agency and the extent of his powers, and this is different from a mere admission not made in the courts.
Reichman-Crosby Co. v. Dinwiddie, 117 Miss. 103, 77 So. 906.
See also Planters' Lumber Co. v. Sibley, 130 Miss. 26, 93 So. 440; 2 C.J.S. 1332, Sec. 114(ff).
The opposition was not entitled to seek in one lawsuit a reformation of the deed, and at the same time a monetary decree for something which allegedly should have appeared in the original deed.
Mississippi Power Co. v. Bennett, 173 Miss. 109, 161 So. 301.
It is not permissible for a person to take a written contract which, under the law, is the exponent of its own terms, and neglect or refuse to limit himself to its provisions, and then, after a long delay, having received benefits under it, to repudiate it upon the ground that he did not know its terms. A contract cannot exist in parol and in writing at one and the same time. The plaintiff must exercise reasonable diligence to determine whether the contract complied with the agreement. He had the contract in his possession in ample time to become acquainted with its provisions.
Mississippi Power Co. v. Bennett, supra.
It is fundamental in the performance of the judicial office that courts will enforce valid contracts as made between competent parties, but will never make contracts for parties and then enforce them.
Goff v. Jacobs, 164 Miss. 817, 145 So. 728; Natchez Pecan Marketing Ass'n v. Bramlett, 163 Miss. 596, 143 So. 429; Wall et al. v. Wall et ux., 177 Miss. 743, 171 So. 675; Edrington et al. v. Stephens, 148 Miss. 583, 114 So. 387.
This Court always proceeds slowly in reversing a chancellor on the facts. But the Constitution invests us with appellate equity jurisdiction, and, in reviewing this record, we do so as chancellors, charged with the solemn duty of requiring the proof to measure up to legal standards. If, according to our view of the facts and the promptings of our conscience, the learned chancellor was manifestly wrong, then it becomes our plain duty to set aside the decree of the court below and apply the legal test as we see it.
Gillis v. Smith, 114 Miss. 665, 75 So. 451; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50.
Ben Stevens and Bruce C. Aultman, both of Hattiesburg, for appellee.
Where fraud or mutual mistake is shown, parol evidence is properly admitted to show that the writing does not embody the agreement of the parties, and parol evidence is admissible to show fraud or mistake.
Hirschburg Optical Co. v. Jackson, 63 Miss. 21; Young v. Jacoway, 9 Smedes M. 212; Howie Bros. v. Walter Pratt Co., 83 Miss. 15, 35 So. 216; Henry v. W.T. Rawleigh Co., 152 Miss. 320, 120 So. 188; Lundy v. Hazlett, 147 Miss. 808, 112 So. 591; Nash Mississippi Valley Motor Co. v. Childress, 156 Miss. 157, 125 So. 708; Pan-Am Petroleum Co. v. Woods, 169 Miss. 562, 153 So. 793; Fornea v. Goodyear Yellow Pine Co., 181 Miss. 50, 178 So. 914; McArthur v. Fillingame, 184 Miss. 869, 186 So. 828; Randolph Lumber Co. v. Shaw, 174 Miss. 297, 164 So. 587; White v. Union Producing Co., 140 F.2d 176.
The decree of the trial court should be affirmed.
Argued orally by M.M. Roberts, for appellant.
On January 27, 1940, the parties hereto entered into a written contract by which appellee could and would purchase from appellant the 40 acres of land here involved. Appellee averred in his bill and so testified that the agreement between the parties was that appellee, the purchaser, should have seven-eighths of the oil and gas and other minerals, the seller to retain a one-eighth interest; that the agent who prepared the written contract, by mistake or fraud, so prepared it as to retain in the seller the entire mineral interest; that appellee in reliance upon the good faith of the agent of appellant to prepare the contract as agreed upon, signed it without reading it and did not discover the alleged variance until he was completing the last payment. The bill prayed for reformation.
Appellant, by its answer and testimony, flatly denied the aforementioned averments, and defends in addition, among other defenses, that the bill is merely a disguised effort to alter a written instrument by parol.
When one party relies on the other to draw the instrument according to the terms of the agreement and the other party or his agent or the scrivener selected by him either through mistake or fraud fails to do so, the fact that the first party failed to read over the instrument before signing it is not such negligence as will prevent his getting relief by reformation. 45 Am. Jur., Ref. Insts., Sec. 81, p. 634, citing First National Bank v. Elam, 126 Okla. 93, 258 P. 892, where the subject is reviewed. See also notes Dolvin v. Am. Harrow Co, 28 L.R.A., N.S., at page 885.
But because the rule as stated approaches so nearly an intrusion upon the salutary rule that when parties have reduced their agreement to writing, the writing may not be varied by parol, it is required that the proof to sustain a bill to reform must be such as to establish the essential allegations beyond a reasonable doubt. We so held in our latest case, Frierson v. Sheppard, 201 Miss. 603, 29 So.2d 726, wherein the decree was reversed because the proof did not measure up to the stated requirement.
This sends us to a close and critical examination of the record of the evidence. Two witnesses only were offered, the complainant in his own behalf, and for the defendant, the agent or scrivener who prepared the instrument. It is perfectly plain that the agent and scrivener prepared the instrument exactly as he intended it should be and that it expressed what he intended therein to express. There is, therefore, no case of a mutual mistake, which leaves only the question whether the agent and scrivener perpetrated a fraud upon the complainant in drawing the instrument as it was drawn, and this may be stated in other words in the inquiry whether the agent and scrivener knew when he drew the instrument that it contained terms distinctly different from that previously agreed upon.
We do not assert that the affirmative of such an issue may not be proved by a single witness, although disputed by another or others, provided the character, quality and cogency of the testimony of the single witness is sufficient to carry conviction beyond a reasonable doubt; but this cannot be the case when the testimony of the single witness is in many important details of a doubtful or inconclusive character, while that in opposition is clear, definite, and positive throughout, and such is the case here. We think it would be difficult to say upon the record of the testimony that the testimony of the complainant amounts to a preponderance, much less than that which must establish his case beyond a reasonable doubt.
Were a bill to reform sustained on a record such as is here before us, there would be little or nothing left of the rule that written instruments may not be altered by parol.
Reversed and bill dismissed.