Richardson v. Perrin , 137 Ga. 432 ( 1912 )

Lumpkin, J.

(After stating the foregoing facts.)

1. The defendant, who was an owner of land, entered into a written contract with the plaintiff to lease to the latter certain land for five years, with an option on the part of the lessee to purchase 200 acres after the expiration of three years from the beginning of the lease. The plaintiff filed an equitable petition, seeking to compel the defendant to specifically perform the agreement to sell. It was held that the description of the land to be sold was too indefinite to authorize a decree of specific performance. Richardson v. Perrin, 133 Ga. 721 (66 S. E. 899). The plaintiff then filed the present petition, seeking to have the written contract so reformed as to express what he alleged was the actual agreement between the parties as to the description of the land to be sold. Construed as setting up a mistake of fact, the allegations of the petition were insufficient. It was not alleged distinctly that the parties intended to put any particular words of description into the contract and failed to do so by reason of accident or mistake, or that they did not know what was in the written contract, or what instructions were given by them to the scrivener as to putting some particular thing into the contract, which he omitted to do by accident or mistake. But construed as setting up a mistake of law, the petition was sufficient to withstand the grounds of the demurrer which were urged against it. An honest mistake of law as to the effect of an instrument on the part of both contracting parties, when such mistake operates as. a gross injustice to one, and gives an unconscientious advantage to the other, may be relieved in equity. Civil Code (1910), § 4576; Rogers v. Atkinson, 1 Ga. 12; Dolvin v. American Harrow Co., 125 Ga. 699 (54 S. E. 706, 28 L. R. A. (N. S.) 785). In Collier v. Lanier, 1 Ga. 238, it was held: “Where an instrument is drawn, 'and executed, which professes and is intended to carry into execution an agreement, whether in writing or by parol, previously entered unto, but which, by mistake of the draftsman, either as to fact or law, does not fulfill, or which violates the manifest intention of the parties to the agreement, equity will correct the mistake, so as to produce a conformity of the instrument to the agreement.” This principle as to a mistake of law in the draftsman has been codified in section 4577 of the Civil Code of 1910. See also Wyche v. Greene, 11 Ga. 159. It is not meant that if a person knows that a material portion of an agreement is omitted from the written contract, but relies on the parol promise of another to carry that part of the "agreement into effect, he can after-wards have the instrument corrected by inserting such provision. Ligon v. Rogers, 12 Ga. 281. There is a clear distinction between adding provisions to a written contract by parol, and making a contract speak what the parties intended it should express, and thought it did legally express, when they executed it.

In the present case it was alleged, that all of the lines of the land covered by tire option were agreed upon prior to the making of the written contract, save one, and it was to begin at a certain point and run in a westerly direction until it intersected with a line fence at a point which would include, within the boundaries 200 acres; that this was sufficient to define the land; that the parties undertook to express in writing the contract, and both honestly believed that the description as written was sufficient to define such land; and that, by mutual mistake of law by both.of the parties and the scrivener, the written contract did not express the actual contract by sufficiently describing the land thus agreed to be included in the option. The allegations were sufficient to withstand a general demurrer. Whether in some respects the petition may have been subject to special demurrer, so as to require more fullness of allegation, need not be considered. A special demurrer was filed, attacking various paragraphs of the petition; but the petition and its paragraphs were not subject to be dismissed for any of the reasons set up therein.

2. No such negligence on the part of the plaintiff appears on' the face of his petition as to authorize a dismissal on that ground. Civil Code (1910), § 4571. Some cases in this court have gone quite far in the direction of denying equitable relief to a party' who claimed that he thought a certain provision or agreement was included in a written contract, but failed to read it without any sufficient excuse therefor. But they do not control this case, in which a mistake of law on the part of the parties to the contract and the draftsman is alleged.

3. It was urged, that, because the time for asserting the option had expired, there was no contract to reform, and the equitable petition seeking reformation was therefore demurrable. We can not concur in this position. If the contract should be reformed, it would stand as if originally so written, as between the parties. It was alleged that within the time prescribed by the contract the plaintiff elected to purchase the land, and tendered payment therefor, and that the defendant refused to carry out the contract. It is the exercise of the option, not the reformation of the contract, which must take place within the time limited, if the contract fixes a limit.

4. There was no error in refusing to strike from the petition the allegations in regard to the contract made by the plaintiff to sell the land at a profit of $1,400.00, and his inability to carry out such» contract because of the refusal of the defendant to convey the land to him. This tended to show that the land was of greater value than that contracted to be paid for it, and that a gross injustice would be done the plaintiff, and the defendant would obtain an unconscientious advantage, if he were permitted to refuse to carry oiit the contract as made, and if it were not reformed.

Judgment reversed.

All the Justices concur, except Sill, J., not presiding.