Neff v. Rains , 33 Wis. 689 ( 1865 )

Downer, J.

The question presented in this case is, whether • there was a mistake in inserting a guaranty of payment, instead of a guaranty of collection at the costs of the assignee, in an assignment of a judgment against one Ripley, transferred by the plaintiff to the defendant below as part payment for a stock of goods.

The plaintiff testified, in substance, that he was only to guaranty the collection; the defendant, that the agreement was that the plaintiff would assign the judgment and guaranty the payment. Wickwire testified: “I was called up to hear the bargain stated as agreed upon by them. Defendant stated, I think (it might have been Neff), that he sold Neff the hardware stock, and was to take a judgment against Ripley in part payment, and the balance in money; and Neff would guaranty the payment of the judgment. Neff assented. Can’t tell the words he used; said that was the understanding.” This is the substance of the testimony as to what took place at the time the bargain was made; and it is clear, if the testimony stopped here, the weight of the evidence would be against the plaintiff. There is, however, conflicting testimony as to the admissions and statements of the parties or their respective agents made subsequent to the agreement, after the delivery of the goods, and before or at the time of executing the assignment, as to what the agreement was ; and the weight of this testimony is against the defendant. But these admissions, made after the goods were delivered, when it was for the interest of the parties each to qualify or modify the agreement in his favor (the proof of the admissions depending upon the imperfect recollection of conversations which witnesses were not specially called upon to recollect), cannot, as it appears to us, outweigh the testimony of Wickwire, who was called upon to hear the bargain stated, and to whom it was stated for the very purpose of his recollecting it in case there was any disagreement as to its terms. And the fact that Neff, after the assignment as drawn had been corrected at his request, and was read over to him, signed it, at the same time being informed, as appears both by the testimony of Wickwire and Rich, that he could not oblige Rains under the assignment to prosecute Ripley at all, strongly tends to corroborate the testimony of Wickwire as to the terms of the agreement.

We aré inclined to the opinion that there was no mistake in the contract of assignment; or if there was any, it was a mistake of law — a mistake on the part of Neff as to the legal effect of the assignment; for it is clear that he knew the contents of the assignment at the time he executed it. If there was- a mistake of law on bis part, be cannot bave tbe instrument reformed on that account. Tbe evidence, in our -judgment, falls far below establishing so clearly a mistake of fact as to warrant a court of equity to interfere and reform tbe contract.

By the Court.— Tbe judgment of tbe circuit court is reversed, with costs, and tbe cause remanded with direction to dismiss tbe complaint.