Collins v. Gleason

91 P. 568, 47 Wash. 69, 1907 Wash. LEXIS 711

Opinion

Per Curiam.

This action, which was commenced on June ££, 1901, arises upon the same memorandum of agreement upon which cause No. 6561, Collins v. Gleason, ante p. 62, 91 Pac. 566, decided by this court on this date, is based. The plaintiffs here sue to reform a deed executed by the defendant, the Fidelity Trust Company, in part performance of that agreement, it being alleged that certain land was, by mutual mistake, incorrectly described therein. From a judgment in favor of the defendants, the plaintiffs have appealed.

The appellants have heretofore recovered a judgment for specific performance in a separate action on the same contract ; hence on the authority of Collins v. Gleason, supra, the judgment herein must he affirmed. Although the appellants here seek to reform the original contract, there has nevertheless been a splitting of actions, as actions, to reform and specifically enforce the same contract may be joined. We will, however, state that we do not find the evidence sufficient to sustain the appellants’ allegation of mutual mistake.

The judgment is affirmed.