“A contract may be clear and unambiguous as far as it goes and yet may not express the agreement of the parties, by reason of mutual mistake.” S. Realty & Constr. Co. v. Bryan, 290 S.C. 302, 309, 350 S.E.2d 194, 198 (Ct.App.1986) (quoting 66 Am.Jur.2d Reformation of Instruments § 6 (1973)). “[A]mbiguity or uncertainty has nothing to do with the reformation of a written instrument, but rather reformation is adjudged because the instrument, by reason of mistake or fraud, does not embody the true agreement of the parties.” Id. The court explained, “Both the parol evidence rule and the doctrine of merger are rules governing the construction of written documents.
("Where an implied term is necessary to effectuate the intention of the parties, the law will supply it." (citing Com. Credit Corp. v. Nelson Motors, Inc., 247 S.C. 360, 366-67, 147 S.E.2d 481, 484 (1966))); S.Realty & Const. Co. v. Bryan, 290 S.C. 302, 312, 350 S.E.2d 194, 199 (Ct. App. 1986) (finding a term was properly found to be implied in the contract). These implied terms are not the same as what we have referred to in modern cases as the "implied covenant of good faith and fair dealing."
As to whether requiring payment by Petitioner to Respondent based upon the settlement agreement that was incorporated into the divorce decree was proper, we find that the warranty of good faith implied in the parties' agreement included Petitioner's agreement to remit to Respondent any sums the parties intended as her property settlement in the case of failure of the designated means of payment. Southern Realty and Const. Co., Inc. v. Bryan, 290 S.C. 302, 311-12, 350 S.E.2d 194, 199 (Ct. App. 1986). As to whether the Uniformed Services Former Spouse Protection Act bars enforcement of the settlement agreement, we find that this issue is not preserved for the Court's review.
Lincoln Joint Stock Land Bank v. Bexten, 129 Neb. 422, 261 N.W. 845 (1935); Hamilton v. Wead, 122 Neb. 854, 241 N.W. 556 (1932); Gentle v. Pantel Realty Co., 120 Neb. 630, 234 N.W. 574 (1931). See, also, Slater v. Pearle Vision Center, Inc., 376 Pa. Super. 580, 586, 546 A.2d 676, 679 (1988) ("where it is clear that an obligation is within the contemplation of the parties at the time of contracting or is necessary to carry out their intentions, the court will imply it"); Southern Realty Const.Co. v. Bryan, 290 S.C. 302, 312, 350 S.E.2d 194, 199 (1986) ("`[t]he policy of the law is to supply in contracts what is presumed to have been inadvertently omitted or to have been deemed perfectly obvious by the parties, the parties being supposed to have made those stipulations which as honest, fair, and just men they ought to have made'"). In Bexten, supra, we addressed the validity of a contract which contained a blank space in which either the singular or plural form of the word "party" should have appeared.
"Noncontradictory terms and conditions may be implied in a contract when the circumstances warrant it to effectuate the manifest intention of the parties." S.Realty & Constr. Co. v. Bryan, 290 S.C. 302, 311, 350 S.E.2d 194, 199 (Ct. App. 1986). "[T]he literal interpretation of policy language will be rejected where its application would lead to unreasonable results and the definitions as written would be so narrow as to make coverage merely ‘illusory.’ "
"Noncontradictory terms and conditions may be implied in a contract when the circumstances warrant it to effectuate the manifest intention of the parties." S. Realty & Constr. Co. v. Bryan, 290 S.C. 302, 311, 350 S.E.2d 194, 199 (Ct. App. 1986).
Given these conflicts in the evidence, some of which involve credibility assessments, we cannot decide based on the record presented in this appeal whether Penn Life, as the party seeking declaratory relief, met its burden by the greater weight or preponderance of the evidence.See Vt. Mut. Ins. Co. v. Singleton, 316 S.C. 5, 10, 446 S.E.2d 417, 421 (1994) ("Where an action is filed for declaratory judgment seeking affirmative relief, the movant must prove his material allegations by a preponderance of the evidence."); S. Realty & Constr. Co. v. Bryan, 290 S.C. 302, 313-14, 350 S.E.2d 194, 200 (Ct. App. 1996) ("An appellate court will not ordinarily become involved in judging the credibility of witnesses. Such is a function of the trier of fact.").
Given these conflicts in the evidence, some of which involve credibility assessments, we cannot decide based on the record presented in this appeal whether Penn Life, as the party seeking declaratory relief, met its burden by the greater weight or preponderance of the evidence.See Vt. Mut. Ins. Co. v. Singleton, 316 S.C. 5, 10, 446 S.E.2d 417, 421 (1994) ("Where an action is filed for declaratory judgment seeking affirmative relief, the movant must prove his material allegations by a preponderance of the evidence."); S. Realty & Constr. Co. v. Bryan, 290 S.C. 302, 313-14, 350 S.E.2d 194, 200 (Ct. App. 1996) ("An appellate court will not ordinarily become involved in judging the credibility of witnesses. Such is a function of the trier of fact.").
See Vt. Mut. Ins. Co. v. Singleton, 316 S.C. 5, 10, 446 S.E.2d 417, 421 (1994) ("Where an action is filed for declaratory judgment seeking affirmative relief, the movant must prove his material allegations by a preponderance of the evidence."); S. Realty & Constr. Co. v. Bryan, 290 S.C. 302, 313-14, 350 S.E.2d 194, 200 (Ct. App. 1996) ("An appellate court will not ordinarily become involved in judging the credibility of witnesses. Such is a function of the trier of fact.").
We agree, but even considering the testimony, we find Brenco failed to prove the deed should be rescinded due to unilateral or mutual mistake. See S. Realty Constr. Co. v. Bryan, 290 S.C. 302, 309, 350 S.E.2d 194, 198 (Ct.App. 1986) (holding parol evidence is admissible to show mistake). As to the elevation, Brenco asserted SCDOT knew about the change in grade but failed to alert them during the initial negotiations.