Continental Waste Co. v. Henderson Bros.

Civil action to recover for failure to deliver cotton baling ties as per written contract.

Defendants admitted execution of the contract and partial performance thereunder, but alleged that full deliveries were to be contingent upon the price of raw materials or unworked ties, i.e., full deliveries of riveted and whole ties were not to be made "unless the defendants could obtain unworked ties at $7.50 per ton, and long ties at $15.00 per ton," and that this provision was omitted from the written memorandum by the mutual mistake of the parties.

Upon issue thus raised, the court instructed the jury that the burden was on the defendants to establish the mutual mistake of the parties by the greater weight of the evidence. Exception.

From verdict and judgment for the defendants, the plaintiff appeals, assigning errors. What quantum of proof is required to reform a written instrument on the ground of the mutual mistake of the parties? The law answers "clear, strong and convincing." Johnson v. Johnson, 172 N.C. 530, 90 S.E. 516.

It is true that ordinarily in civil matters the burden of proof is carried by a preponderance of the evidence, or by its greater weight, albeit in a number of cases, as where, for example, it is proposed to correct a mistake in a deed or other writing, to restore a lost deed, to convert a deed absolute on its face into a mortgage, to engraft a parol trust upon a legal estate, to impeach the probate of a married woman's deed, to establish a special or local custom, and generally to obtain relief against the apparent force and effect of a written instrument upon the ground of mutual mistake, or other similar cause, the evidence must be clear, strong and convincing. Ins. Co. v. Morehead, 209 N.C. 174,183 S.E. 606; Lloyd v. Speight, 195 N.C. 179, 141 S.E. 574; Speas v. Bank,188 N.C. 524, 125 S.E. 398; Montgomery v. Lewis, 187 N.C. 577,122 S.E. 374; Sills v. Ford, 171 N.C. 733, 88 S.E. 636; Lamb v. Perry, 169; N.C. 436, 86 S.E. 179; Glenn v. Glenn, 169 N.C. 729, 86 S.E. 622;Penland v. Ingle, 138 N.C. 456, 50 S.E. 850; Williams v. Building andLoan Asso., 207 N.C. 362, 177 S.E. 176.

The defense set up in the instant case falls in this special class, and the burden is on the defendants to establish it by evidence clear, strong and convincing. Williams v. Ins. Co., 209 N.C. 765, 185 S.E. 21. There was error, therefore, in the instruction to the jury that the burden of the defense would be met by the greater weight of the evidence, for which a new trial must be awarded. Hubbard Co. v. Horne, 203 N.C. 205,165 S.E. 347.

New trial.