Philip E. McCarthy and Effie W. McCarthy v. Bernard W. McCarthy Luella McCarthy George E. Harter and Eileen Harter

210 F.2d 656

Philip E. McCARTHY and Effie W. McCarthy, Appellants,
v.
Bernard W. McCARTHY, Luella McCarthy, George E. Harter and Eileen Harter, Appellees.

No. 11881.

United States Court of Appeals Sixth Circuit.

February 4, 1954.

Appeal from the United States District Court for the Western District of Tennessee; Marion Speed Boyd, J.

Barnett & Skeer, Kansas City, Mo., Irving M. Strauch, Memphis, Tenn., for appellants.

Exby, Moriary, Dueease & Goff, Memphis, Tenn., for appellees.

Before ALLEN, McALLISTER and MILLER, Circuit Judges.

PER CURIAM.

1

This case came on to be heard upon the record and briefs and oral argument of counsel;

2

And it appearing that careful and exhaustive findings of fact and conclusions of law are supported by clear, cogent and convincing evidence and that the District Court correctly found that a mutual mistake of fact existed requiring reformation of paragraph 6 of the written contract of June 14, 1950, between the parties so as to include therein the State of Indiana and Southeast Missouri, bounded on the north by Highway 61 and on the west by Highway 67, and correctly held that the appellees had not been guilty of gross negligence nor of laches barring them from relief;

3

But it appearing that it was not alleged in the appellees' counterclaim nor proved that the territory so omitted included "the territory abutting said highways";

4

It is ordered that the judgment in the above cause be and it hereby is modified by striking therefrom wherever found therein the phrase "including the territory abutting said highways."

5

And no other reversible error appearing in the record, it is ordered that the judgment as so modified be and it hereby is affirmed.