Griffin v. Societe Anonyme la Floridienne

53 Fla. 801

• Court: Supreme Court of Florida
• Decided: January 15, 1907
• Status: Published

Opinion

Hocker, J.

(after stating the facts) : The purpose of the bill is to secure the reformation of the lease contract executed by complainants to Charles P. Savary on the 18th of 'October, 1902, by striking out the words “or until the exhmistion of the rook required to- he mined under this lease” It is alleged in the bill, in substance, that these words were interpolated in the lease after its execution and delivery to the defendants, that they materially changed the nature >of the contract, were inserted therein without any consideration, without the knowledge of Mr. B'orden, and are, therefore, not binding upon the complainants. The answer denies that these words were inserted in the contract after its execution and delivery, and avers that they were in the lease when it was originally prepared and sent to North Carolina to be executed by the complainants, and that the defendant company would not have accepted an assignment of the lease from Savary if it had not contained these qualifying words. Without further examination we shall assume that the words which the bill seeks to eliminate from the lease are material. The law with reference to the reformation of written instruments, and the character of the evidence required in such cases, have been passed on in a number of cases by this court. In Jacobs v. Parodi, 50 Fla. 541, 39 South. Rep. 833, we followed and re-affirmed the rule laid down in Franklin v. Jones, 22 Fla. 526, where it is held that “while equity would reform a written instrument when by mistake it did not contain the true agreement of the parties, yet it would only do so when the mistake was plain and the proof was full and satisfactory; that the writing should be deemed to be the sole expositor of the intent of the partiés until the contrary was established beyond reasonable controversy; that such relief would not be granted where the evidence was loose, contradictory or equivocal.” Inhere the ground for reformation is that fraud was committed the same rule is applied. Hargis v. Campbell, 14 Fla. 27. An examination of a number of authorities satisfies us that this rule obtains generally; some courts holding that the facts must be proved beyond a reasonable doubt. The burden of proof is upon the complainants to establish the facts which are relied on for reformation by clear and satisfactory evidence. Harrison v. Hartford Fine Ins. Co., 30 Fed. Rep. 862. In Whitney v. Smith, 33 Minn. 124, 22 N. W. Rep. 181, it was held that where a deed was executed in the performance of an executory contract. to convey the land, and where the deed so executed differed from! the contract, this fact aloné does not make out a case for reformation; the deed being the last express agreement on the subject would be prima, fade evidence that the change had been mutually agreed on.

The next inquiry is, does the evidence clearly and satisfactorily show that the defendant company agreed to take an assignment from Savary of a lease executed or to be executed to him by the complainants, ’according to the contract in the option, and without the words “or until the exhaustion of the rock required to be mined under this lease ?” In order to show the affirmative they offer the evidence of Mr. Smith, taken on interrogatories in North (Carolina, while he was on a sick bed. He testified that he negotiated the option with Charles P. Savary, who is agent or represented himself as agent, of the Buttgenbach. Company; that Savary told him he (Savary) was such agent, and that Buttgenbach paid him $500 for every tract of land upon which he found a deposit of 10,000 tons of phosphate. It is insisted that soon after Savary obtained the option that the defendant company began prospecting the land, and that when Savary sent the lease to North Carolina to be executed he sent a letter with the lease requesting that the complainants execute an agreement authorizing him to transfer the same to Buttgenbach & Co.; that when the lease was delivered at Inverness, on the 22d of October, 1902, it was delivered either to A. S. Anderson, general superintendent of the company, or to Judge McConathy, the counsel of said company; that after the delivery of the lease on the 17th of November, 1902, A. S. Anderson wrote a letter to Mr. Smith, in which he stated to him that the lease should have been transferred by Savary to the defendant company, but that Mr. Warnock, who wrote the letter, made a mistake and had written the consent for a transfer to J. Buttgenbach & Co., and asking that the latter be authorized to transfer the lease to the company. It is insisted that these' circumstances prove that Savary was the agent of the defendant company in securing the option. On the contrary, it appears from the evidence of Mr. A. S. Anderson that Savary was not acting for the company in securing the option; that he did not do so at its instance; that he was not in the employment of the company; that he was a broker and went around getting up lands, and offering them to the different phosphate companies; that Savary offered the lease in question to the company, and there was an agreement with Savary that the company would pay him a dollar a ton, provided the company took it. It appears from the written transfer of the lease made by Savary to the company marked Exihibit “C,” to the bill, that Savary was to be paid by the company fifteen cents per ton royalty on all phosphate mined or required to be mined under the lease, and that in the event the defendant company should fail to carry out the terms of the lease it should revert to him. It also appears that when the lease and transfer of the same was delivered on the 22nd of October, 1902, at Inverness, the defendant company by its attorney, Judge McConathy, delivered the company’s check to Mr. Smith of $5,000 for advance royalties, and at the same time delivered the company’s check to Savary for $800' or thereabouts, in advance payment of his share in the royalties. Savary was put on the stand as a witness by complainant, but was not asked whether or not he represented the defendant company in taking the option from Smith and Borden. Objections were made by the defendant company to the testimony of Mr. Smith contained in the interrogatories and answer, but no ruling thereon is given in the record. It is plain, however, that agency cannot be proved by the mere declaration of a supposed agent. Orange Belt Railroad Co. v. Cox, 44 Fla. 645; Lakeside Press, etc., v. Campbell, 39 Fla. 523; 16 Cyc. 1005-6; Francis v. Edwards, 77 N. C. 271; Grandy v. Ferebee, 68 N. C. 356; Royal v. Sprinkle, 1 Jones’ Law (N. C.) 505. It seems to us the complainants have signally failed to show clearly and satisfactorily that Savary was the agent of the defendant company in negotiating the option with complainants, but the preponderance of the evidence shows that Savary was acting on his own behalf, as an independent party. It follows, therefore, that the words of the proposed contract contained in the option are not controlling as to the words which were to be used in the contract with the defendant company.

It is next insisted by-the appellants that the objectionable words “or until the exhaustion of the rock required to be mined under this lease,” were inserted in the lease after its execution and delivery, and without consideration. To sustain this contention Mr. Smith says that they were not in the lease as it was originally executed in North Carolina, but were inserted after the lease had been delivered by him.' to the agent of the defendant company at Invernesss on the 22nd of October, .1902, and after the advance payment had been made, and without any consideration, and without the consent of Borden. Mr. Savary testifies that he wrote a letter to W. EL Smith dated at Floral City, Fla., on October 14th, 1902, inclosing the lease contract to be executed in Northh Carolina; that the lease contract was drawn in accordance with the option contract, and that he thinks the words “or until the exhaustion of the rock required to be mined under this lease” were inserted when Mr. Smith came down from North Carolina to close the lease with the Buttgenbach people — at least that was when his attention was called to the change, and that when his attention was called to it, Mr. Smith had his money. Mr. Smith also says that he went over from Floral City to Inverness and met Judge McConathy and A. S. Anderson in front of the hotel. After a short conversation with Mr. Anderson, he said: “ 'Mr. Smith, I presume you have come down to execute the lease?’ I said, 'Yes, I have got it executed and all delivered.’ I also said, 'You have not carried out that contract. You have only prospected a small portion, Mr. Cox tells me about 1% acres.’ Ele says, 'Mr. Smith, it is very expensive to prospect a piece of land right at once, but we will prospect the whole place; we have, however, prospected enough to satisfy us that we are justified in paying you the amount of money, and I am here prepared to pay it to you.’ Therefore I handed him the lease and he gave me the check, if I remember correctly, signed by the Buttgenbach Company for $5000.” Mr. Smith further testified that Mr. Anderson (the manager) said to me: “You remember that this contract was copied from one that contained 10 or 11 thousand acres of land, that only contains 80 acres. We are going to put up a plant on your place; the capacity will be from) 15 to 20 thousand tons per year, and if we should mine out the rock that this contract calls for in a shorter time, or five or six years, we would not like to have the $5,000 rental to follow after the amount had been mined out.” I said to Mr. Anderson: “You are dealing with honest, honorable men, and we would not receive pay for the same thing twice. I further said, I do not know how we can change this thing now. It has been executed, delivered and paid for, and my partners. are in Goldsboro, but we will do anything that is right.” I think Judge McConathy suggested, after reading it over, that we insert in here the words, 'unless the rock is sooner exhausted,’ and I agreed to it, because I did not want anybody’s money without value and anybody’s money twice for the same thing. It was all done after the delivery of the lease and the payment of the money, without consideration whatever, only as an honest intention to do right. I do not remember whether Judge McConathy inserted the clause in the original lease. It was one or the other.” Mr. Smith undertakes to give conversations more than two' years and a half after they are alleged to have occurred. He was on a sick bed,and as we understand fromi the assertions of solicitors for appellants in argument, on his dying bed. The facts which he states with reference to the time when the words which, are objected to were inserted in the lease, and the circumstances connected therewith, are absolutely irreconcilable with the evidence of Judge McConathy, Mr. Warnock and Mr. Anderson. Mr. Anderson says he met Mr. Smith for the first time on the occasion of closing the deal he had some interest in — in the- forenoon of the day; that he left Inverness on the same day on the northbound train between one and two o’clock; that when he left the lease had not been delivered; that it was not delivered to him; that he left the check for Mr. Smith with Judge McConathy; that the lease was not delivered to him; that he had no recollection of the conversation with Mr. Smith about inserting the words which are objected to in the lease; that he did not insert them himself; that he recollects no discussion with Mr. Smith about them; that he thinks he would have recollected such a conversation if it had occurred; that as he recollects, the clause was in the lease when he first saw it at Inverness in the morning before the lease was delivered, and that such a clause is usual in all leases he had drawn up, or had caused to be written for the company.

Mr. Walter F. Warnock, the clerk of the circuit court for Citrus county, testified that he was acquainted with Mr. Savary and Mr. Smith — not well acquainted with the latter, having seen him five or sis times; that he drew the option for a iease between Savary of the one part and Smith and Borden on the other; that Smith paid him for drawing it; that at the time of drawing the option, he made four or five carbon copies of that part which was the contract or lease; that Judge McConathy was at his office in the evening of the 15th of October, 1902, and the next morning, examining the abstract of title to the land embraced in the suit; that the clause “or until the exhaustion of the rock required to be rained under this lease” was not in the original contract contained in the option; that he inserted it himself on the suggestion of Judge McConathy on the morning of the 16th of October, 1902; that he wrote a letter tO' Mr. Smith for Savary and the lease and letter were mailed to Mr. Smith at Goldsboro, North Carolina; that the date of the letter was erroneously stated as the 11th of October, when it should have been the 16th; that Judge McConathy dictated that part of the letter which had reference to the manner of executing the lease (he identifies the letter already in evidence as the letter he wrote); that he was present at the time the lease was delivered in his office at Inverness; that it was delivered in the evening of the 22nd of October; that Mr. Savary, Mr. Smith, Judge McConathy and himself were present; that the payment was made by Judge McConef-v with a check of Buttgenbach & C-o. on New York; that Mr. A. S. Anderson was. not present at the time the payment was made, but left because he could not wait for Savary to get back from a hunting expedition ; that Anderson left about noon; that Savary got to Inverness late in the evening of the 22nd. He further testifies that when parties called for copies of the lease he used the carbon copies he had made in writing the original option and interlined with a typewriter the words in, regard to the exhaustion of the rock. He made those copies originally for his own convenience. The interlineation took just a line across the page. The letter which he wrote for Savary begins: “Enclosed herein please find copy of contract to be executed and acknowledged by yourself and wife and Mr. E. B. Borden, Jr., in accordance with your option to me of the first of September,” and he was asked whether the letter calls attention to the interlined words. He answered'“it did not seem to,” and said he did not call attention to the interlineation because it was, none of his business, he was writing for Savary, and it was nothing to him one way or the other; that the matter was not discussed.

Warnock testified that either he or Savary mailed the letter and lease to Mr. Smith. Savary acknowledged the signature to the letter as his own.

Judge McConathy testified that he was a practicing lawyer at Ocala, Fla.; that he examined the title to the lands involved for Buttgenbach & Co.; that he did so at Inverness, between the 15th and 16th of October, 1902; that when he went to Inverness he met Mr. Warnock in the clerk’s office, who was apparently representing Mr. Savary in the matter of getting up the papers — lease; that to the best of his recollection he called to Warnock’s attention that there should be a clause in the lease providing that the lease should expire upon exhaustion of the rock; that Warnock was writing to Smith, and he spoke to Warnock about the importance of cautioning Smith concerning the proper execution of the instrument; that if the disputed clause was not already in the lease he called Warnock’s attention to it and had him insert it. His impression is that he inserted it that day; that Buttgenbach & Co.’s leases had such a clause; that he had been their attorney since 1898 or ’9; that he went to Inverness again on the 21st of October, 1902, for the purpose of receiving the lease and closing the transaction; Mr. A. S. Anderson was there on the morning of the 22nd of October, the day the lease was delivered, and remained until the arrival of the train going north, which was about 11 or 12 o’clock, when he left and was not there any more during that day; that Savary reached Inverness about 3 o’clock on the afternoon of that day, and the business was transacted; that they had to await the arrival of Savary, who with his wife, arrived in the afternoon, and executed the assignment, and thereupon the assignment and lease was delivered to him! (McConathy) about á o’clock in the afternoon; that he turned over the checks, one to Savary and one to Smith, for the advance royalties; that he is quite positive no changes was made in the lease; that he would not have done so after its execution; that he is positive no such conversation occurred between himself and Smith about inserting the words “unless the the rock is sooner exhausted,” after the execution and delivery of the lease, as Mr. Smith gives in his testimony. The complainants sought to require the defendant company to produce and file the original lease, but the officers of the company whose duty it seems to have been to have care of the company’s papers, all testified that they had searched for it, but did not have and could not find said original lease, and did not know wheré it was. This circumstance is insisted upon as very damaging to the contention of the defendant company, as its presence would have settled the question whether the interlineation of the clause objected to was in the handwriting of Mr. Anderson or Judge McConathy, as Mr. Smith contends, or was made by Mr. Warnock with a typewriter. There is nothing in the record which authorizes us tO' infer that this original lease was withheld from a sinister motive. It is evident that Mr. Smith was mistaken in saying that Mr. Anderson did it after the delivery of the lease to the defendant company, becáuse Anderson is clearly shown to have left Inverness before the ■transaction was closed and the lease delivered. It seems somewhat improbable that a lawyer of good standing would have inserted such an interlineation in a written contract after its execution and delivery, in his own handwriting, and especially in the absence of one of the parties to the contract, whose interests would be seriously affected thereby and without any written explanation upon the instrument showing when, how and why it was done.

There is some confusion and errors in the dates of some of the transactions and some other slight circumstances which are dwelt upon by the appellants, but giving them all due weight, we do not think they are of any special probative value, and it would add to the prolixity of this opinion to go into a minute analysis and discussion of them. The circuit judge decided against the contention of the appellants, and we are unable to say that the complainants have made out their case in so clear and satisfactory a manner as to justify us in reversing his decree.

The circuit judge recites in his order making his findings on the facts that on final hearing, complainants asked leave of the court in the case the court should come to the conclusion that the words alleged to have been placed in the contract after the signing, were, as a matter of fact, put into the contract when it was sent to North Carolina for execution, to allow complainants to amend their bill according to these facts. The circuit judge denied this request, and it is argued here that in doing so, he erred. The issues were made up on the precise allegation that the objectionable clause was inserted after the execution and delivery of the contract. The bill was sworn to by the complainants, and the answer denies this allegation and sets up as a defense that the clausewas inserted in the contract when it was written and sent to North Carolina for execution. No exception was taken to the defense made in the answer. Passing by the question whether any proper application to amend was made, it is undoubtedly the law that in a proper case a complainant may be permitted to* amend the bill on final hearing so as to meet the proofs as made, if they entitled him to relief. But this is not an indiscriminate rule. We have discovered no case which authorizes such an amendment inconsistent with the allegations of the original bill. In Seymour v. Long Dock Company, 17 N. J. Eq. 171, it was held that where upon the final hearing, or even after appeal it appears clearly from the evidence that the complainant has a case which entitled him to relief, but which by reason of some defect or omission in the charges or allegations of the bill, is not brought fairly within the issue, he will be permitted to adapt the allegations of the bill to the case as proven. When the proposed amendments would change the issue, or introduce new issues, or materially vary the grounds of relief, they must be introduced by supplemental bill. It is further held that such an amendment is a matter of indulgence to be granted in the discretion of the court. In Codrington v. Mott, 14 N. J. Eq. 430, it is held that amendments are allowed in equity with great liberality, but as a general rule, amendments which seek to make a new case inconsistent with that originally made, if allowable at all, should be applied for and made before the cause is at issue. It is also held 'that applications to amend should be made promptly after the necessity for the amendment has been discovered. In one of the cases cited by the appellants, The Tremolo Patent, 23 Wall. (U. S.) 518, text 527, Mr. justice Strong says: “It is true that an amendment which changes the character of the bill ought not generally to be allowed, after a case has been set for a hearing, and still less after it has been heard. The reason is that the answer may become inapplicable if such an amendment be permitted.” It appears that the only amendment desired was conditioned on the judge’s finding the facts to be those set up in the answer by way of defense, and inconsistent with allegations of the bill, and the plaintiff’s testimony. To have permitted such an amendment would have made a new case. To have made a case at all, it would have been necessary to allege that complainants did not read the contract as it was sent to them, and to have given some reasonable explanation why they did not do so. A new answer would have been necessary, and new testimony upon the new issues would have been required. We find no error in the decree from which the appeal is taken, and the same is affirmed at the costs of the appellants.

*Taylor and Parkhill, JJ., concur; Shackleford, C. J., and Cockrell and Whitfield, JJ., concur in the opinion.