W. P. Brown & Sons Lumber Co. v. Echols , 200 Ga. 284 ( 1946 )

1. A court of equity will reform a contract of sale when, from mutual mistake or mistake common to both parties, an instrument does not express the true agreement of the parties.

2. Ordinarily the question of duplicity in pleading must be raised by special demurrer, but there is an exception to this rule. Where material averments are made in the alternative or disjunctive, and any one of them is insufficient, the entire pleading is to that extent bad in substance and subject to general attack by demurrer or motion.

No. 15348. JANUARY 16, 1946. John H. Echols, Sarah Echols, W. K. Beavers, Mary B. Weems, and Rio Beavers filed a petition against W. P. Brown and Sons Lumber Company, alleging in substance: that the plaintiffs own an undivided seventeen-eighteenths interest in a described tract of land; that on June 17, 1941, the plaintiffs executed and delivered to the defendant company, for a valuable consideration, a timber deed conveying all timber on the described land; that, prior to the execution of the deed, the plaintiff John H. Echols was approached by one Henry McWhorter, an agent and representative of the defendant company, and negotiations were entered into respecting a sale of the timber; that thereafter McWhorter sent for one Gray, who was also an agent and employee of the defendant company, and Gray cruised the timber; that thereafter Gray and the plaintiff John H. Echols entered into an oral agreement by the terms of which it was agreed that the plaintiffs would sell to the defendant "all the pine timber located on said lands which would measure eight inches or more at the butt except sixteen acres of land on which is located the home place, and being that sixteen acres, more or less, embracing the house and spring and clearly marked, . . it being specifically understood and agreed that said sixteen acres was excepted from said sale and was not to be conveyed, and the boundaries thereof were pointed out to the said Gray and it was so understood by him;" that, after entering into the oral agreement, the plaintiffs were told by Gray to be at the office of the attorney for the defendant company on a designated date, and on the date designated the plaintiff John H. Echols, who is seventy-five years of age and at the time and prior thereto was sick and in bad health, and the plaintiff Sarah Echols, who is sixty-six years of age and at the time and prior thereto was sick and in bad health, went to the office of the named attorney, who had never been present at any conversation or conference between the parties, and who received any information he had as to the drawing of the timber deed from the defendant; and when they arrived at the office of the attorney, Gray was not present, and after they had waited for Gray for several hours, and until night, they were told that Gray did not have to be present and for them to go ahead and sign the deed; that at that time they were "completely exhausted from waiting and were in a hurry to get back to their home and they signed said deed, believing that it conveyed the timber on the lands agreed to by the said Gray, and that the same was never read to them, and that neither of said parties knew that it contained" a description of the sixteen acres excepted from the sale; "that the plaintiff John H. Echols was in such condition that he was unable to sign his own name but made his mark thereto;" that at the time the deed was signed by the plaintiffs, John H. Echols and Sarah Echols, the deed was not read to them and they in good faith believed that the writing contained the contract and agreement made between the parties and did not convey the sixteen acres, and "on account of their age, illness, infirmity, and almost complete physical exhaustion in waiting to sign and execute said deed, that they were incapable of understanding its contents, and in their hurry to get away from Summerville and back to their home in the county before dark, they signed the same."

The petition further alleged that "the execution of said deed was through a mutual mistake of both parties, arising out of the misunderstanding of the scrivener in that he simply copied the description in the old deed whereby petitioners obtained title to said land, and failed to except said sixteen-acre tract, or that the agent and employees of the defendant misrepresented the agreement and contract between the parties to the said Brinson and instructed him to draw said deed, following the description in the deed which was turned over to the defendant by petitioners for the purpose of checking title thereto;" that the defendant did not attempt to cut any timber on the sixteen-acre tract until all timber had been cut and removed from the remainder of the land, and then for the first time did the plaintiffs know that the defendant was claiming to own the timber on the sixteen-acre tract; that all negotiations for the sale of the timber were handled for all the plaintiffs by the plaintiff John H. Echols, and the other plaintiffs were not present at the time the plaintiffs, John H. Echols and Sarah Echols, signed the deed, but signed the deed on other occasions, not knowing that the deed did not represent the contract and agreement made between the parties. The prayers of the petition were for temporary and permanent injunctions, a reformation of the deed so as to exclude from its terms the sixteen-acre tract described in the petition, and for general relief.

The defendant demurred generally to the petition on the grounds that no cause of action at law or equity was set out; that no sufficient facts were alleged to support the prayer for reformation, the allegations of fraud being insufficient, and no facts being alleged to excuse the plaintiffs for their failure to read the deed, and no facts being alleged to show a mutual mistake.

The exception is to a judgment overruling the general demurrer. 1. "A court of equity will reform a contract of sale when, from mutual mistake or mistake common to both parties, an instrument does not express the true agreement of the parties. Equity will also reform an instrument where there is ignorance or mistake on one side and fraud or inequitable conduct on the other." Gibson v. Alford, 161 Ga. 672, 682 (132 S.E. 442). In the first instance, negligence of the complaining party in ascertaining the contents of the instrument sought to be reformed will not necessarily preclude reformation of the instrument, while in the last instance due diligence must be shown by the complaining party before the instrument will be reformed. Green v. Johnson, 153 Ga. 738 (113 S.E. 402).

The petition in the instant case fails to allege a cause of action for reformation of the deed on the ground of mistake on the part of the complaining parties and fraud on the part of the defendant. It is not alleged that the complaining parties were illiterate or unable to read; nor is it shown why the deed could not have been signed at a later date. Nor is it alleged that any artful, deceitful, or fraudulent means were employed to induce the complaining parties to sign the deed before reading it. By the exercise of the slightest diligence the plaintiffs could have apprised themselves of the contents of the deed. Their excuse that, believing the deed to contain the true agreement, and because of their old age, illness, infirmities, almost complete physical exhaustion, and their hurry to return to their home, they signed the deed without reading it, is insufficient to relieve them of their negligence in failing to read the deed. See, in this connection, Walton Guano Co. v. Copelan,112 Ga. 319 (37 S.E. 411, 52 L.R.A. 268); Baker v. Patton,144 Ga. 502 (87 S.E. 659); Paris v. Treadaway, 166 Ga. 138 (142 S.E. 693); Lewis v. Foy, 189 Ga. 596 (6 S.E.2d 788). Had the petition alleged artful, deceitful, or fraudulent conduct by the defendant or its agents to procure the signatures of the complaining parties before they had an opportunity to read the instrument, a different case might have been alleged (WaltonGuano Co. v. Copelan, supra); but, the petition showing no such conduct on the part of the defendant or its agents and negligence on the part of the complaining parties, the allegations are insufficient to allege a cause of action for reformation on the ground of mistake on one side and fraud on the other.

2. It is insisted by the plaintiffs that the petition is based on the ground of mutual mistake and sets forth a cause of action on this ground. The petition alleges: "The execution of said deed was through a mutual mistake of both parties, arising out of the misunderstanding of the scrivener in that he simply copied the description in the old deed whereby petitioners obtained title to said land, and failed to except said sixteen-acre tract or that the agent and employees of the defendant misrepresented the agreement and contract between said parties to the said Brinson and instructed him to draw said deed, following the description in the deed which was turned over to the defendant by petitioners for the purpose of checking title thereto."

Ordinarily the question of duplicity in pleading must be raised by special demurrer, but there is an exception to this rule. Where material averments are made in the alternative or disjunctive, and any one of them is insufficient, the entire pleading is to that extent bad in substance and subject to general attack by demurrer or motion. Doyal v. Russell,183 Ga. 518 (189 S.E. 32); Groover v. Savannah Bank c. Co.,186 Ga. 476 (198 S.E. 217); Consolidated Distributors Inc. v. Atlanta, 193 Ga. 853, 857 (20 S.E.2d 421). If all inconsistent, disjunctive, or alternative allegations of a petition, considered in connection with other allegations, are sufficient to allege a cause of action, the petition might be subject to a special demurrer for duplicity, but not a general demurrer; but, applying the well-recognized rule that the allegations of a petition must be construed most strongly against the pleader, "Where pleadings are ambiguous or couched in alternative expressions, on demurrer they will be given that construction which is most unfavorable to the pleader; so that, if two matters are pleaded in the disjunctive, one of which is good and the other not, the petition is to be treated as pleading no more than the latter, and if any one of several averments alleged in the alternative is insufficient to state a cause of action, the entire pleading is bad and subject to general demurrer." Consolidated Distributors Inc. v. Atlanta, supra.

In the instant case, the allegation of mutual mistake arising by reason of an error in description made by the scrivener might, standing alone, be sufficient to allege, as against a general demurrer, a mutual mistake of the parties, for a petition for reformation will lie where by mistake of a scrivener and oversight of the parties a writing does not express the real contract between the parties (Smith v. Smith, 74 Ga. 404; Kitchens v. Usry,121 Ga. 294, 48 S.E. 945; Cheatham v. Palmer, 178 Ga. 223,172 S.E. 462; McCollum v. Loveless, 187 Ga. 262,200 S.E. 115); but the further disjunctive and inconsistent allegation that the mistake in the deed arose by reason of misrepresentations of the agent of the defendant to the attorney who drew the deed directly negatives a mutual mistake. If this allegation be true, the mistake in the deed was not a mutual one, and the petition sets forth no cause of action.

Construing the petition most strongly against the pleader, and applying the foregoing rules, it thus appears that, under one of the two alleged alternatives in reference to the execution of the deed, the averments are insufficient to allege a cause of action. The court erred in not sustaining the general demurrer.

Judgment reversed. All the Justices concur.