Cox v. Hall

168 P. 519, 54 Mont. 154, 1917 Mont. LEXIS 91

Opinion

MR. JUSTICE SANNER

delivered the opinion of the court.

On and prior to April 12, 1909, the plaintiff, George B. Cox, was in the rightful possession of the E. % and the E. % of the W. % of section 5, Tp. 2 S., R. 5 W., in Madison county, Montana, under contract of purchase with the defendant Pace-Woods Improvement Company, which tract includes a triangular piece of ground containing 63.06 acres, as illustrated below:

The complaint alleges, in substance: That on April 12, 1909, the plaintiff and the defendant Hall completed negotiations for the purchase by Hall of that portion of said triangular tract lying east of a certain line (marked in the diagram A-B), reserving to the plaintiff a strip thirty feet wide along the east side-line as a road, for the consideration of $1,000, to be paid by Hall to the defendant Pace-Woods Improvement Company for credit by it on Cox’s contract, providing said company would assent to such agreement and would convey to Hall in accord anee therewith; that the parties waited upon Mr. Ike E. O. Pace, the secretary of the improvement company, and Cox, in the presence and hearing of Hall, explained the transaction to Mr. Pace, pointing out upon a map the boundaries of the piece which Hall was to receive; that the improvement company assented, and-Cox thereupon instructed Pace to draw such written instruments as would be required to put the agreement into effect; that Pace, in an abortive attempt so to do, indorsed upon Cox’s contract of purchase the following:

“April 12,1909.

“George B. Cox for and in consideration of the sum of -$1.00 and other things of value does hereby release from this contract all ground between the Parrot Silver and Copper Company’s Ditch, and the N. P. Ry. Co. right of way, 40 acres more or less, and contracts that same be deeded to M. S. Hall and the purchase price of $1,000 credited on this contract. Also 40 inches of water.

“ [Signed] Geo. B. Cox.

“Witness: Ike E. O. Pace.”

That Pace is an attorney at law, and, because of previous dealings with him, Cox reposed confidence in his ability to understand the agreement, to reduce the same to writing, and to properly describe the land involved therein, as pointed out to him, and by such confidence Cox was led to believe, and did believe, the indorsement to correctly describe such land, “and, so believing and relying, plaintiff inadvertently signed said instrument and indorsement”; that thereafter and in a further abortive attempt to carry out the agreement between Cox and Hall, the defendant improvement company conveyed to Hall the entire triangular tract above described, and consisting of 63.06 acres, in conformity to the description contained in said indorsement; that said indorsement and conveyance are erroneous and do not express the agreement between Cox and Hall, in that they omit the western boundary of the piece sold to Hall (to-wit, the line A-B), and do include the smaller triangle containing 21.33 acres lying between the railroad and the Parrot ditch and west of the line A-B, which never was intended to be conveyed to Hall; that thereafter plaintiff completed his contract of purchase and demanded of the improvement company a deed for the lands so contracted for, less the tract sold to Hall, and the company executed and delivered to him a deed for said lands, less the entire piece, containing 63.06 acres as described in the indorsement and conveyance to Hall, which deed the plaintiff took under protest; that after conveyance by the company to Hall, Hall advised plaintiff that the deed from the improvement company was erroneous by reason of the excess above mentioned, and agreed to have the error corrected, requesting plaintiff to ascertain from Pace what was necessary to remedy the mistake; that accordingly plaintiff called upon Pace, who answered that if Hall would bring the deed, he (Pace) would have it changed to read correctly and in accordance with the agreement, and such answer plaintiff conveyed to Hall, demanding that Hall take his deed to Pace for correction or else convey direct to plaintiff the parcel containing 21.33 acres lying west of the line A-B; but Hall has ever since failed and neglected, and now refuses, to do either; on the contrary, he has against the will and without the consent of plaintiff taken possession of said tract and ousted plaintiff therefrom, torn down the fences thereon, etc.: that before the commencement of this action plaintiff also demanded of defendant improvement company that it correct its said conveyances to him and to Hall so as to include in the former, and exclude from the latter, the parcel west of the line A-B, but the company has failed, neglected and refused so to do. The prayer is for a reformation and correction of the instruments accordingly, for an injunction against interference with plaintiff in the possession of the tract, for damages sustained, and for costs.

Issues were joined and the cause brought for trial before the court sitting without a jury, and the court, after hearing the evidence, made findings of fact and conclusions of law upon which a judgment and decree for plaintiff was entered. Defendants’ motion for new trial was later overruled, and these appeals are the result.

1. The relief granted by the decree substantially accords with the prayer of the complaint, and defendants’ first contention is that the complaint does not state facts sufficient to warrant such relief. This contention is grounded upon the proposition that no mutual mistake of the parties is made to appear; the plaintiff’s plea of inadvertence in signing the indorsement being fatal to the contention of mistake, because it implies negligence on his part. The modern law of this state upon this subject is laid down in Hennessy v. Holmes, 46 Mont. 89, 125 Pac. 132, Parchen v. Chessman, 49 Mont. 326, Ann. Cas. 1916A, 681, 142 Pac. 631, 146 Pac. 469, and Brundy v. Canby, 50 Mont. 454, 148 Pac. 315, and these authorities establish: That when a complaint [1-3] proceed-ing on the theory of mutual mistake alleges facts which command the inference of such mistake, unless deliberate fraud is imputed, such complaint sufficiently alleges mistake; that the term “mistake” always involves the conception that the victim has been guilty of some degree of negligence which may or may not be excusable in the circumstances of the particular case; and that courts of equity are not bound by cast-iron rules, but are governed by rules which are flexible and adapt themselves to particular exigencies, so that relief will be granted when, in view of all the circumstances, to deny it would permit one party to suffer a gross wrong at the hands of the other. The application of these principles to the complaint before us is obvious and [4] decisive. According to its allegations, plaintiff and Hall had a certain agreement. They repaired to Pace to have that agreement put in proper form. Cox in Hall’s presence stated the agreement accurately; Pace presented a writing which did not state the agreement accurately, but Cox, relying on Pace’s integrity and ability, failed to observe the inaccuracy; Hall likewise failed, or, if he noticed the error, made no mention of it; the result was to convey to Hall 21.33 acres of land, which neither party intended he should have in consequence of their transaction. The circumstances pleaded in principle approach those detailed in Parchen v. Chessman, supra, and if they do not suffice to warrant relief, then the entire doctrine of mistake as ground for relief is unintelligible. We think the complaint is sufficient.

2. To us, out of the presence and hearing of the witnesses, it appears that the court below might well have reached a different result; but it would be a gross perversion to say that the findings and decree are without substantial evidence to support them. The testimony of Cox alone is sufficient, if taken as true, for that; and this testimony, supported more or less by that of others, is reinforced by the silence of Pace, who more than anyone else should have been able to tell just exactly what occurred; hence we cannot even conclude, as the defendants insist, that the findings and judgment are against the true weight of the evidence. It is vigorously argued, however, that in the last analysis the judgment rests upon findings 6 and 7, and that they have no foundation in the pleadings or the proof. As to finding 7 this is manifestly not the case; it embodies the substance of paragraphs 5, 6 and 7 of the complaint, and is well supported by [5] evidence. Finding No. 6 is “that plaintiff Cox is a man of meager education, and not familiar with land surveys or descriptions, and is unable to properly describe land, technically or legally, or detect errors in such descriptions.” In point of fact this follows the testimony of Cox and, possibly, the deductions inferable from his -presence and conduct. It is true that there is no specific allegation in the complaint upon this subject, but proof of the general allegation of mistake involves such considerations as are expressed by the finding; so that the finding, though unnecessary, was germane to the issues and, in this sense, supported by the pleadings.

3. It is contended that the record discloses a clear case of [6] laches which, under the maxim, “Equity aids only the vigilant, ’ ’ should bar recovery. The answers contain no specific plea of estoppel by laches, and the claim now made is based upon the fact that suit was not brought until April 2, 1912. The testimony shows that, although Cox had learned from Hall of the error, had been led to believe that Hall would assent to its correction, and had later learned the contrary, he was not finally advised that correction would be denied, and was therefore not in position to seek relief in court, until he got his deed from the improvement company in November, 1910. From that time on he used reasonable diligence in bringing on his claim for adjudication, but was delayed by a series of circumstances beyond his control, until April, 1912. We have repeatedly declared that though “laches may arise from an .unexplained delay short of the period fixed by the statute of limitations * ' * * still laches will not be presumed from such a delay alone. It must be made to appear affirmatively that unusual circumstances exist which on account of such delay render the proceeding inequitable; else relief cannot be denied on this ground. ’ ’ (Brandy v. Canby, supra; Wright v. Brooks, 47 Mont. 99, 130 Pac. 968.) No such circumstances are presented here.

4. Citing Trinkle v. Jackson, 86 Va. 238, 4 L. R. A. 525, 9 S. E. [7] 986, the defendants argue that the particular correction here awarded was improper, because “a contract for the sale of land, in which the tract is stated to contain a given quantity, more or less, the intention being to sell the land in gross, is one of hazard, which places upon each party the risk of excess or deficiency, and prevents each from asking relief in case the quantity proves to be different from that stated.” This is 'true, but beside the mark. The matter in question here is, What tract did Cox agree to sell and Hall to buy? The expression, “so many acres more or less,” is designed to cover small excesses or deficiencies in the acreage of a particular tract sold as such; it may be, and often is, collateral evidence to show the intent of the parties; but it cannot be used to warrant the inclusion of something which it never was the intention of the parties to include.

5. We see nothing in the criticism of the form of the decree justifying interference by us.

The judgment and order appealed from are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.