Arnold v. Fowler , 44 Ala. 167 ( 1870 )

B. F. SAFFOLD, J.

-Equity will grant relief in cases of written instruments, where there is a plain mistake clearly made out by satisfactory proofs. — 1 Story’s Eq. Jurisp. § 157; Gillespie v. Moon, 2 Johns. Ch. Rep. 595-597; Lyman v. United Ins. Co., 2 Johns. Ch. Rep. 630.

The written agreement, sought to be reformed, is that the appellant Arnold transferred to the appellee Fowler twenty-one bales of cotton, and agreed to deliver it at Selma after due notice. The mistake alleged is, that Arnold only agreed to pay the freight on the cotton from a certain point on the railroad to Selma, instead of to deliver the cotton at Selma.

The answer, not under oath, denies explicitly the allegation of the bill. Both parties were examined as witnesses. The complainant testifies that the written agreement does not express the terms of the contract, but that it was made after the sale had been concluded, at the office of the defendant, where he had gone to collect the money, and in the hurry and excitement of the moment.

The defendant swears that the writing was made at the counting-room of the complainant, on the day of the purchase, and that it expresses the real contract of the parties ; that the exception of fire risk was inserted at the instance of the complainant.

A. R. Baker, a witness for the complainant, deposes that he was present when the sale was made in the store of Arnold. Arnold was to sell the cotton to Eowler at a certain price, not recollected, transfer to him the written obligation of Sanders to deliver it at his nearest depot, which he did, and to pay the freight from the depot to Selma. Eowler was to pay for the cotton, which he did then and there, by paying the money, or giving a check; he thinks he gave a check. Arnold assumed no other liability that he knew of; he was not present when any other contract was made; the negotiations were pending for two or three days. He did not pay particular attention to what was being said by them, but heard them trading, and made the account of sales. He was in the employment of Arnold, and endeavored to make his employer’s interest his own. In addition to this evidence for the complainant, there was proof of attempts by the defendant to obtain possession of the cotton without application to the complainant for its delivery, as shown by the letters to him from W. T. Lundie, and his purchase of bagging and rope to fit it for market.

The purpose of the bill is to enjoin the collection of a judgment at law, obtained by the defendant against the complainant on a written contract, and to substitute, for the written, a parol contract entirely different from the written one, and so affecting the interest of the parties that the defendant, instead of receiving a large sum of money, will recover from the complainant a mere trifle.

This can be done in equity, if the proof is sufficiently clear and cogent. Parol evidence is admissible to prove the mistake, though it is denied in the answer; and this, either where the plaintiff seeks relief affirmatively on the ground of the mistake, or where the defendant sets it up as a defense, or to rebut an equity. —See authorities above quoted.

The obligation of a contract is the intention of the parties, as expressed and understood by them, at the time of its execution. The written evidence of this intention, signed by the party to be charged at the time, is so far superior to parol testimony that the latter can not be admitted until the absence of the former is satisfactorily accounted for. In the case under consideration the testimony of the complainant is neutralized by that of the defendant. The attempts of Fowler to obtain the cotton, prior to a demand on Arnold for its delivery, are circumstances too slight and unmeaning to admit of much consideration. Having the contract of sale of the party in possession, if he could procure the delivery, without application to his immediate vendor, there would be nothing inconsistent with his contract to do so.

The transfer of Sanders’ obligation to the defendant, and the testimony of Baker, are the strong points in the complainant’s favor. As tOjthe first, it seems that this obligation of Sanders was transferred by Lundie & Lapsley by delivery merely. The next transfer by Goodwin & Robbins, is of “ the within agreement to D. S. Arnold.” Arnold’s transfer to Fowler is of “the within cotton,” with an obligation to deliver it at Selma, fire risk excepted. Independently of the stipulation to deliver the cotton, has not Arnold by this agreement undertaken more than the prior assignors ? All of the evidence is, that he sold the cotton to Fowler. Is he not liable to him for damages on Sanders’ default, even if Eowler undertook to apply to him for the cotton ? The testimony of Baker tends to limit his liability, but he admits that he did not pay particular attention to what was being said, and that the negotiations for the sale were protracted through two or three days. He and Arnold might have understood the contract as they state it to be, and Eowler, as he claims it to be. There is no proof by the complainant of any circumstances of hurry and excitement on his part at the time of writing his transfer. He placed in the possession of the defendant his own written statement of the extent of his agreement. If either party was unintentionally mistaken, the loss should fall on him who was the cause of the misapprehension. We do not think the evidence of mistake is so conclusive as to justify the proposed alteration of the written contract.

The other grounds of relief are negatived by the answer, and supported and denied by the testimony of the parties onlj.

The decree is affirmed.