Fery v. Pfeiffer , 18 Wis. 510 ( 1864 )

By the Court,

DIXON, C. J.

If tbe complaint was defective in not averring that tbe name Nicolaus Eery, instead of Claud Fery, was inserted by mistake of tbe draftsman in tbe original draft of tbe lease, certainly tbe amendment proposed by tbe plaintiff should have been allowed. There is nothing so nice or technical in a complaint for specific performance, as to take it out of tbe operation of tbe statute of amendments, or to deprive tbe court of power to relieve tbe plaintiff from tbe mistake or omission of bis counsel. Tbe chief point of objection, as we understand it, is, that it would be requiring tbe defendant to execute a different contract from that set forth in tbe complaint and from that originally presented to him for bis signature. As to tbe first branch of tbe objection, if sustained, it would be equally fatal to almost every proposed amendment of a complaint, and show that in no case should such amendment be allowed. Eor the object of such amendments almost always is, to change tbe cause of action as set forth in tbe com-pl aint in some particular or particulars. If such proposed change defeats tbe application, then tbe statute is useless. Such is not tbe inquiry upon applications of tbe kind. It is, whether tbe defendant has been misled to bis prej udice in maintaining bis defense. It is so obvious here that be was not, as hardly to admit of comment. His answer, from beginning to end, is framed upon tbe idea of standing upon this variance. He knew, then, very well what lease be was called upon to execute, and could not be taken by surprise.

As to tbe other branch of tbe objection, that tbe lease to be executed must be identical with that originally prepared for bis signature, that being to Nicolaus instead of Claud Fery, it is too late for tbe defendant to take advantage of it. If be refused to sign it on that ground, be should have said so at tbe ■time. Tbe mistake, bad it then been discovered to tbe plaintiff, would undoubtedly have at once been corrected. Tbe defendant could not lie by, keep tbe secret, put tbe plaintiff in possession and keep him in upwards of a year, faithfully performing and relying upon the lease, and then for the first time bring up this objection for the purpose of defeating the lease altogether. Such conduct savors very strongly of fraud, and a court of equity can stand upon no such narrow and untenable ground. Besides, it appears that the mistake was made by a scrivener of the defendant’s own choice. He employed him, and dictated the terms of the lease in every respect.

Upon the merits, the case presents no new principle, or new application of any old principle, of equity jurisprudence. Upon the pleadings and proofs, so far as they are in, it is full of equity. It may be sustained under the head of specific performance, or fraud, or both, for specific performance is often decreed because of fraud.

The objection that it is unproved that the conveyances from the defendant to Hein and from Hein to Adelheide Pfeiffer were without consideration, and made with full knowledge by the grantees of the existence of the lease and subject to it, is without foundation. Adelheide Pfeiffer makes no answer, and thus confesses the truth of the allegation. If she admits it, it is a matter of no interest to the defendant John Pfeiffer, whether it is true or not. But if this were not so, the plaintiff was in possession at the time of the execution of those conveyances, and the grantees were bound to take notice of his rights.

Judgment reversed, and cause remanded for further proceedings according to law.