Opinion
01-14-1914
ZARECKI et al. v. GUARANTEE REALTY CO.
Jos. B. Tyler and A. M. McNutt, both of Camden, for complainants. Stackhouse & Kramer, of Camden, for defendant.
Suit by Michael Zarecki and others against the Guarantee Realty Company to reform a contract for the construction of a building. Decree for complainants.
Jos. B. Tyler and A. M. McNutt, both of Camden, for complainants. Stackhouse & Kramer, of Camden, for defendant.
LEAMING, V. C. To entertain a substantial doubt touching the truth of the material averments of a bill of this nature is to deny the relief sought; but in this case I am convinced that there can be no real doubt touching the material facts. There is conflict of testimony of witnesses, but the truth is too obvious to be doubted.
The typewritten translation of the contract which had been executed in the Polish language, as that contract had been interlined after its execution, was admittedly made the basis of the final contract. The interlineations in that typewritten translation were undoubtedly determined upon at a conference between Harry Varbalow, representing defendant company, and complainant Michael Zarecki, assisted by Mr. Gulcz and Mr. Cinkowski. The testimony of the two latter witnesses, who have no pecuniary interest in this controversy, is that all the modifications of the typewritten translation which were then agreed upon were embodied in it by erasures and interlineations, and that a modification of the depth of the building was neither agreed upon nor even suggested. The contract that was agreed upon on that occasion was undoubtedly the typewritten translation as modified by ink erasures and interlineations made at that time. Both of these witnesses have also testified that they then retyped this interlined document with a purpose to accurately reproduce it; that one dictated while the other operated the typewriter; and that by error of one of them, and not by intention, the depth of the building was made 40 instead of 44 feet. If this is true—and of its truth there can be no real doubt—the idea of a building 40 feet in depth, or of any depth except 44 feet, never formed any part of the negotiations or entered the minds of any of the parties prior to the meeting at which the signatures were affixed to the contract. At that meeting the parties undoubtedly met with a mutual purpose to execute a contract for a building 44 feet in depth, as previously agreed upon. Whether the contract was read at that meeting or not is of little importance, for it is inconceivable that complainants at that time voluntarily and knowingly waived 4 feet of the depth of the building as already agreed upon without comment or protest, and if defendant's representatives at that time observed the change in the depth of the building it was their plain duty, under the then existing circumstances, to call complainants' attention to that change. Complainants undoubtedly signed the contract believing it to be for a building 44 feet in depth, as had been previously agreed upon; defendant's representatives either did the same or concealed the fact that they had observed the error. In either case the right of reformation would obtain. Simpson Plumbing Co. v. Geschke, 76 N.J.Eq. 475, 478, 79 Atl. 427; s. c. on appeal, 78 N.J.Eq. 306, 81 Atl. 1133.
There is conflict of testimony touching the subsequent conduct of the parties which might well cause a court to hesitate in granting the form of relief here sought if that relief were to any considerable extent dependent upon confidence in the testimony of complainant Michael Zarecki. But I do not believe the testimony of either Mr. Goldenstein or Mr. Zarecki touching those matters. The truth touching those transactions is reasonablyobvious; it is not, in my judgment, as stated by either party to the transactions.
I will advise a decree of. reformation in accordance with the prayer of the bill.