Parklawn Manor v. J-L Co.

This is an appeal from a decision of the Court of Common Pleas of Franklin County, Ohio, sustaining a motion to dismiss a cross-petition and one of the defenses alleged in the answer. A defendant-appellant sought to have a reformation of certain specifications of a contract between the other defendant-appellant and the plaintiff-appellee. The defendant who sought the reformation of the contract was the surety who executed a bond in connection with a contract for the construction of a sewer in the plaintiff's housing project.

The trial court did not feel that there was sufficient evidence to warrant a reformation of the specifications. Although it was indicated that somebody had made a mistake because of the incoherent and inconsistent provisions in the specifications, there was no clear and convincing evidence of what the parties intended should be in the specifications.

This was an appeal on questions of law and fact, and the evidence offered in the trial court was stipulated to be the evidence for presentation in this court. After a review of the stipulated evidence, we think it is clear that the parties did not desire the incomplete paragraphs found on pages 7, 8 and 9 of the sanitary sewer improvement specifications, but, from the evidence, these specifications were not drawn after an agreement between the parties but were left to the engineering firm, The Jennings-Lawrence Co., defendant-appellee. The evidence is not clear that they did not intend to put section 30, from page 8, into the specifications, nor is it clear that they intended those sections found on page 8 of the Norton Homes contract to be included in these specifications. While the reformation of the specifications asked for would complete the paragraphs on pages 7 and 9 of the specifications as they now exist and would remove the inconsistency which now exists between section 30 on page 8 and section 42 on page 9, the evidence presented through the employees of the engineering firm does not indicate that section 30 was an undesired paragraph in the specifications. Its inconsistency with section 42 is not adequately explained and its enforceability remains doubtful.

In view of the fact that there is an absence of clear and convincing proof indicating what the exact terms of the contract were in the minds of the parties to the contract, I believe that the reformation was properly denied, and the motion to dismiss the cross-petition of Globe Indemnity Company sustained, but it does not follow that the first defense of the amended answer of Parker Bros., Inc., cannot be proved and that part of the motion should be overruled. The case should be returned to the trial court for further proceedings.