Kant v. Atlanta, Birmingham & Atlantic R. R.

66 So. 598, 189 Ala. 48, 1914 Ala. LEXIS 171

• Court: Supreme Court of Alabama
• Decided: November 7, 1914
• Status: Published

Opinion

ANDERSON, C. J.

While the hill of complaint in the case at bar seeks inconsistent, alternative relief, it was not multifarious under the statute (section 3095 of the Code of 1907), and was not subject to respondent’s demurrer upon this ground. The relief sought was founded upon the same contract or transaction and related to the same property between the same parties.—Durr v. Hanover Bank, 170 Ala. 260, 53 South. 1012; Skains v. Barnes, 168 Ala. 426, 53 South. 268; Bellevue Cem. Co. v. McEvers, 168 Ala. 535, 53 South. 272.

A mistake or misunderstanding of one party to a transaction, sometimes styled a “unilateral mistake,” will not authorized the reformation of a written instrument; since, in order to reform a contract, it must appear that the parties mutually intended something different from that expressed.—Folmar v. Lehman-Durr Co., 147 Ala. 472, 31 South. 750; Clark v. Hart, 57 Ala.. 390. A unilateral mistake is not a ground for reformation.—34 Cyc. 915. While the bill avers a mistake upon the part of the complainant, it does not expressly charge a mistake on the part of the respondent or its agents or servants. It may be that it does so inferentially, but inferences will not be indulged in by the court in order to uphold pleading in law or equity as against an appropriate ground of demurrer.

While the charge of fraud or misrepresentation as to the land described in the deed by the engineer “Gansby” could have been more positive or specific, yet it may be conceded that it was sufficient.—Johnson v. Cook, 73 Ala. 537. Still the bill was deficient under this theory of the case for failure to aver a restoration of the status quo upon a discovery of the fraud or within a reasonable time thereafter, as the deed, as made an exhibit to the bill, does not show that the consideration was nominal, or that the erection of the depot was the sole consideration for same. It recites a valuable consideration of money paid and which may have been the full value of the land.

The deed does not make the erection of the depot a condition to the vesting of the title in the respondent railroad. Nor does it provide for a reversion of the land upon a failure to erect the depot within a reasonable time. It provides for a reversion only after the erection of the depot and the respondent ceases to use the land for railroad purposes. The deed also provides that the land was to be used “for a depot and side track and other necessary uses for the railroad.” The agreement to erect the depot not being a condition precedent to the vesting of the title nor a condition subsequent for the reinvestment of the title in the complainant in case of failure to eréct within a reasonable time, the failure to so erect could not operate as a ground for the cancellation of the deed; as the obligation to do so must be treated as' no more than a covenant.— Chicago, T. & M. C. R. R. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39, and note.

The decree of the city court is affirmed.

Affirmed.

McClellan, Mayfield, and Somerville, JJ., concur.