Goerter v. Shapiro

72 S.W.2d 444, 254 Ky. 701, 1934 Ky. LEXIS 148

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: June 6, 1934
• Status: Published

Opinion

Opinion of the Court by

Judge Ratliff

Affirming.

By a writing dated November 30, 1931, tbe appellee, George Shapiro, proposed to sell to the appellant, Carrie L. Goerter, a lot and an apartment house thereon located on St. Joseph street in the city of Louisville, Ky., for a consideration set out in tbe writing. Tbe writing described tbe lot as being 44' x 40', more or less. Following the words “more or less” are interlined tbe words “including all tbe west sidewalk.” On tbe same day appellant accepted tbe proposition, and on tbe 7th day of December, 1931, a deed of conveyance was executed by appellee and bis wife to appellant for the property apparently as described in tbe previous writing. Tbe consideration for tbe property was all paid except $315.18, for which sum appellant executed her note to appellee, and to secure same a lien was retained in tbe deed. Tbe note was not paid at maturity, and soon thereafter appellee instituted this suit in tbe Jefferson circuit court to collect tbe note and foreclose tbe lien against tbe property securing same.

By answer, appellant, defendant below, admitted tbe purchase of tbe property and execution of tbe note and pleaded as a defense to tbe note that appellee did not convey to her all tbe property contracted and agreed to be conveyed and alleged that appellee agreed to convey to her a plot of land “44' x 40' more or less including all tbe west sidewalk,” and that be pointed out to her a point in tbe coping of tbe fence where tbe new concrete began as bis line, which included all the west sidewalk, which would have made a plot of land 43' 9" x 42' 3" and that tbe error in tbe deed was either by mutual mistake or by mistake on tbe part of tbe appellant or by fraud and inequitable conduct on tbe part of appellee, .and prayed that the contract be canceled and tbe parties ;put in status quo or that tbe deed be reformed so as to include all tbe property that appellee bad agreed to con•vey to appellant up to and including tbe line pointed out to her by appellee, making tbe dimensions of tbe property 43' 9" x 42' 3". Tbe issues were made up and the proof taken and tbe chancellor rendered a judgment in favor of appellee for tbe sum of bis note with a lien ¡against tbe property as retained in tbe deed, and from that judgment this appeal is prosecuted.

Appellee insists that be conveyed to appellant tbe property described in tbe writing, contract, or option and that tbe deed is in accordance therewith. He testified that tbe words “including all tbe west sidewalk” had been inserted in the original contract since he signed same, and that the contract he entered into was for a lot 44' x 40', more or less. The original typewritten deed is filed with the record, and there appears on the face of the deed. certain interlineations in ink corresponding to the interlineations in the original contract. The original contract is also filed with the record, which contract is partly in print and partly written by pen with blue ink except in the description or dimensions of the lot, the figures “44” and “40” and the interlined words “more or less including all the west sidewalk,” are in black ink.

It is argued for appellee that the interlined words, “including all the west sidewalk” are a forgery and that the figures “44” and “40” and the words “more or less” were traced with black ink iii order that they correspond to the words “including all the west sidewalk.” We have personally examined under magnifying glass the words and figures in question, and it is apparent that there have been used different colors of ink. H. G. Boggess, who was the mutual agent for appellant and appellee, negotiated the trade between them, and he testified that he drew the original contract and wrote it with his fountain pen or with two fountain pens, and that he did not remember which. He testified that the contract contained the words “including all the west sidewalk” at the time it was signed by appellee. After the original contract was signed, Boggess, • the agent, made a copy of it which he furnished appellee, which copy is filed with the record here and does-not include the words “including all the west sidewalk.”' We note the following questions and answers thereto:

“Q. After Mrs. Goerter signed this contract,, did you furnish Mr. Shapiro with a copy as you remember? A. Not a carbon copy.

“Q. But you furnished him what was a copy of the contract? A. Well it might not have been word for word. Those propositions I never make a-carbon copy because I never carry any carbon with me. I generally use one original contract, but some-times a fellow asks for a copy, and it might not be word for word; I might leave out an exception or something like that, but when it is requested I get it*

“Q. Is this contract entirely in your handwriting with the exception of the signatures? A* Yes; written in my hand, and with my fountain pen or two fountain pens, I don’t know which.”

Appellee denies that he pointed out the break in the coping or concrete as the line of his property or the line to which he contracted to convey' to appellee, and denies that he was present at the time she claims he pointed out to. her such lines.

A written instrument may be reformed where there is an allegation and proof of mutual mistake or of a mistake upon one side and fraud upon the other. It is very clear from the evidence that, if there was a mistake between the appellant and appellee, it was only on the part of appellant, and a mistake of one party only does not constitute grounds for reformation of the contract. Scott v. Spurr, 169 Ky. 575, 184 S. W. 866; Williams v. Harvey, 192 Ky. 684, 234 S. W. 315; Kentucky Title Co. v. Hail, 219 Ky. 256, 292 S. W. 817.

On the issues as to whether or not appellee practiced a fraud upon appellant in pointing out to her and contracting with her to convey to her property including all the west sidewalk was an issue of fact to be determined by the chancellor aiid which we will not disturb unless his finding is not sufficiently supported by the evidence.

Fraud will not be presumed, and one who charges fraud assumes the burden of sustaining his accusation by clear and convincing evidence sufficient to overcome the legal presumption of innocence and honesty. Fraud may be proved by positive evidence or circumstances .and inferences fairly and reasonably deducible therefrom, but it may not be proved by mere inferences, conjecture, or suspicion, and, where the proven facts or circumstances merely show inferences, conjecture, or suspicion, or such as to leave reasonably prudent minds in doubt, it must be regarded as a failure of proof to establish fraud. Rice v. Hord, 252 Ky. 469, 67 S. W. (2d) 715, and cases cited therein.

True it is that appellant and two other witnesses testified that appellee did point out to appellant a line which included more property than conveyed in the deed. As against their testimony we have the testimony of appellee only, but he is corroborated by the attendant, circumstances. The copy of the contract furnished appellee by the agent, Boggess, does not correspond with tbe original, and moreover the irregnlarites on tbe face of tbe original contract respecting tbe interlined words and different colors of ink and Boggess’ unsatisfactory explanation as to why be wrote tbe contract with bis fountain pen “or with two pens” containing different colors of ink tends to strongly corroborate appellee in bis contention that be only contracted to sell to appellant a lot 44' x 40' more or less, and that tbe words ‘‘including all tbe west sidewalk” were not included in tbe contract at tbe time appellee signed it.

Tbe positive evidence of tbe witnesses and tbe attendant circumstances were matters for tbe chancellor to give such weight as he may have deemed proper, and we are unable to say that bis finding is not supported by sufficient evidence.

Tbe judgment is affirmed.