Abilene National Bank v. Fina Supply, Inc. ( 1986 )

ON MOTION FOR REHEARING

Fina urges that this Court erred in reversing and rendering judgment that it take nothing. Fina contents that the doctrine of election of remedies is not applicable and, therefore, a judgment based on reformation of the letter of credit should have been entered. See TEX.R.CIV.P. 434.

We disagree with Fina’s contention regarding the inapplicability of the doctrine of election of remedies. However, should we be in error, Fina is not entitled to a judgment based upon reformation of the letter of credit. Reformation of an instrument can be based upon either mutual mistake or unilateral mistake accompanied by inequitable conduct or fraud. See St. Paul Fire & Marine Ins. Co. v. Culwell, 62 S.W.2d 100 (Tex.Comm’n App.1933, judgment adopted); Conn v. Hagan, 93 Tex. 334, 55 S.W. 323 (1900); First National Bank of Andrews v. Jones, supra; Stegall v. Fulwiler, supra; Meador v. Ivy, supra.

The plea which Fina has made for reformation is founded upon allegations of unilateral mistake and fraud. Since Kiser’s representations do not amount to fraud so as to support a judgment based upon fraud, those same representations cannot constitute fraud so as to support a judgment based upon reformation due to unilateral mistake and fraud. Without fraud, unilateral mistake will not entitle a party to reformation. See Sun Oil Co. v. Bennett, 84 S.W.2d 447 (Tex.Comm’n App.1935, opinion adopted); St. Paul Fire & Marine Ins. Co. v. Culwell, supra; Lander Lumber Co. v. Williams, 250 S.W.2d 317 (Tex.Civ.App.—El Paso 1952, writ ref’d n.r.e.).

The motion for rehearing is overruled.