Wolsey v. Neeley

Mr. Justice Gary.

The appellee filed a bill to reform a contract in these Avords:

“ Contract and agreement entered into this 14th day of April, A. D. 1881, between C. H. Bunker and C. S. Wolsey, parties of the first part, and C. H. Neeley, party of the second part, all of the City of Chicago, County of Cook and State of Illinois.

“ Whereas, the parties of the first part have this day sold and delivered to the party of the second part a certain sixty-five (85) shares of stock of the Abbott Buggy Co., a corporation doing business in the City of Chicago and State of Illinois, par value of said stock being one hundred (100) dollars each share.

“Now witnesseth, for and in consideration of one dollar in hand paid, the receipt whereof is hereby acknowledged, and such purchase of said stock by said G. JET. Neeley, the said 0. H. Bunker and 0. S. Wolsey, parties of the first part, together or individually, agree to pay said 0. H. Neeley fifteen per cent interest per annum, on the sum of sixty-five hundred dollars (§6,500), said interest to commence from the first day of November, A. D. 1887, and payable annually, said agreement to continue for three years.

“ It is understood and agreed by all the parties to this contract that any and all dividends that may be declared during the three years above stated by the Abbott Buggy Co. on said stock purchased by said O. H. Neeley, shall go tó said C. H. Bunker and C. S. Wolsey, parties of the first part.

“It is further agreed and understood by all the parties to this contract, namely, C. H. Bunker and G. S. Wolsey, parties of the first part, and 0. II. Neeley of the second part, that at the expiration of said term, namely, three (3) years from November first, A. D. 1887, the said 0. II. Neeley shall resign this agreement, and shall retain the said sixty-five (65) shares of stock, if he so elect; or the said G. H. Bunker and G. S. Wolsey, parties of the first part, agree to purchase the said sixty-five (65) shares of stock at par value of one hundred (100) dollars per share, if the said G. II. Neeley shall so elect.”

He asked for the relief which the court gave him by a decree, which substituted for the second paragraph of the contract these words:

“Now witnesseth, for and in consideration of one dollar, in hand paid, the receipt whereof is hereby acknowledged, and such purchase of said stock by said O. II. Neeley, the said 0. H. Bunker and C. S. Wolsey, parties of the first part, together or individually, agree to guarantee and pay to said 0. H. Neeley a sum equal to fifteen per cent per annum as a dividend on the par value on said sixty-five shares of stock, in lieu of any and all dividends to be declared or to accrue on said stock, said payments to commence from the first day of November, A. D. 1887, and payable annually, said agreement to continue for three years.”

There are two reasons why that decree is erroneous. First, the appellee did not need it; and second, if he did, he was not entitled to it.

As to the first reason: The contract as written is the same in legal effect as the court has made it. In either form, the appellants, for the dividends, which might be any per cent, agree to pay to the appellee fifteen per cent. And in either form, this may be a cover for usury, but it is not usury on the face of the paper. The real transaction may be shown by extrinsic evidence. Earll v. Mitchell, 22 Ill. 530; McGill v. Ware, 4 Scam. 21; Davis v. Rider, 53 Ill. 416.

As to the second reason: The contract was prepared by a Mr. Ackers, read over by both parties, and signed, without any mistake as to the words of it; nor was there any subject-matter which had been agreed upon between the parties left out by the writer, nor any inserted which had not been agreed upon.

The whole mistake, if any there were, was as to the meaning of the words used to express the agreement of the parties upon the subject to which the words relate.

Public policy forbids any change upon parol testimony. Parties must be at liberty to put their engagements into such form that they shall not thereafter be subject to either failing or unveracious memory of witnesses. We refer as to the law on the subject only to Hair v. Johnson, 35 Ill. App. 562, and Fowler v. Black, 136 Ill. 363. What application Locke v. Towler, 41 Ill. App. 66, may have to this case, we do not consider.

The decree is reversed and the cause remanded with directions to the Circuit Court to dismiss the bill.

Reversed cmd remanded„