Charles H. Ford et al. Executors, etc., Appellants, v. James F. Joyce et al., Respondents

Charles H. Ford et al. Executors, etc., Appellants, v. James F. Joyce et al., Respondents. While parol evidence is admissible to show a mistake in a written agreement, yet to justify a reformation of the instrument on that ground, the mistake should be proved as much to the satisfaction of the court as if admitted. (Argued October 3,1379; decided November 11, 1879.) This was an action upon a promissory note. Defendants answered in substance that, by an agreement between the parties, certain deductions were to be made, and alleged that the balance had been paid. The answer alleged that a written contract was executed which was not in conformity with the parol agreement; that defendants pointed out the discrepencies, and a new writing was made which defendants signed, supposing it embodied the corrections, when in fact it was substantially the same as the first instrument. They asked to have the executed agreement reformed. No mutual mistake or fraud was alleged. The referee without directly finding mistake or fraud, found the agreement in language differing from the written agreement. Held, that construing the findings as implying a mistake the evidence did not justify it. The court stating the rule as above, citing Inehcim v. Child (1 Bro. C. C., 93) ; Gillespie v. Moore (2 J. Ch., 597) ; Mead v. W F. Ins. Co. (64 N. Y., 453). Also held, that taking the contract as claimed by defendants the construction given it by the referee was erroneous. Amasa J. Parher for appellants. Therm, G. Strong for respondents. [MAJORITY — Danforth, J.,] Danforth, J., reads for reversal and new trial. All concur ; Rapallo, J., concurring on last ground. Judgment reversed.