Lieberum v. Nussenbaum

The agreement that if the defendant desired to increase the first mortgage, plaintiff would release her purchase-money mortgage for that purpose and take back a second mortgage in its place, is improvident on its face. In the absence of any definite agreement by the defendant to apply the proceeds toward enhancing the security, it would enable the defendant, on the pretext of desiring to remodel the premises, to deprive the plaintiff of her security to the extent that the defendant might be able to induce any third person to loan money on the property. Plaintiff did not comprehend the legal consequences of the transaction at the time, and brought this action two days after the execution of the papers and before any intervening rights or equities could possibly arise. All of the assignments of error based on the ground that the court erred in holding the transaction improvident are overruled.

Broadly speaking, the remaining question is whether on this record the plaintiff is entitled to a judgment setting aside the deed and for a reconveyance. It is objected that there is no allegation that the transaction was improvident, but none is necessary when, as in this case, the improvidence is apparent on the face of the paper. For the same reason it was not necessary to allege that the defendant knew that the transaction was improvident.

The defendant points out that there is no allegation of mutual mistake, but none is necessary in a suit for cancellation. "The mistake of one only of the parties inducing him to sign a contract which, but for the mistake, he would not have entered into, may be a ground in some cases for cancelling the contract, but it cannot be a ground for a reformation of it." Snelling v. Merritt,85 Conn. 83, 101, 81 A. 1039.

The mistake of one only of the parties due to a failure to comprehend the legal consequences of the transaction, is not of itself a ground for cancellation. Relief is granted in such cases only when the mistake is induced by the conduct of the other party, or when he seeks unconscionably to take advantage of it. 16 Cyc. 69; Taylor v. Atwood, 47 Conn. 498. In this case that necessary element is supplied by the finding that the defendant knew that the transaction was improvident, and knew at the time when the papers were executed that the plaintiff did not comprehend the legal consequences of her act.

The only defect apparent on the face of the record is the want of any express allegation in the complaint that defendant knew that the plaintiff did not comprehend the legal consequences of her act. On the other hand, the complaint was not demurred to; the court has found the fact; there is no claim that this finding was made without evidence; no record of any objection to the evidence on which it was based; no motion in arrest of judgment; and no assignment of error based on the failure to allege that defendant knew the plaintiff failed to comprehend the legal consequences of her act. On this state of the record the question is not open on appeal.

We do not treat the averment and finding that the plaintiff's agent betrayed his principal in order to secure a commission, as any part of the plaintiff's case against the defendant, and for that reason it is unnecessary to refer to the remaining assignments of error.

There is no error.

In this opinion the other judges concurred, except MALTBIE, J., who dissented.