Opinion
2 Div. 868.
October 22, 1925.
Appeal from Circuit Court, Greene County; Fleetwood Rice, Judge.
J. F. Aldridge, of Eutaw, for appellant.
The court erred in rendering decree for complainant. Clark v. Hurt, 57 Ala. 390; Guilmartin v. Urquhart, 82 Ala. 570, 1 So. 897; White v. Henderson, 165 Ala. 218, 51 So. 764; Hammer v. Lange, 174 Ala. 337, 56 So. 573; Holland-Blow Stave Co. v. Barclay, 193 Ala. 200, 69 So. 118.
R. B. Evins, of Birmingham, for appellee.
The testimony having been taken orally before the trial judge his conclusions will not be disturbed. D. S. Motor Co. v. State, 212 Ala. 371, 102 So. 805; Bell v. Blackshear, 206 Ala. 673, 91 So. 576. The provision relating to taxes, orally agreed to, was binding on the parties. Robinson v. Bullock, 66 Ala. 548; Pioneer Sav. Bank v. Nonnemacher, 127 Ala. 521, 30 So. 79; Andrews v. Tucker, 127 Ala. 602, 29 So. 34.
"To authorize the reformation of a contract which has been reduced to writing and signed, the proof must be clear, exact, and satisfactory — first, that the writing does not truly express the intention of the parties — that on which their two minds had agreed; and, second, what it was the parties had intended the writing should express. Guilmartin v. Urquhart, 82 Ala. 571, 1 So. 897.
In White v. Henderson-Boyd Co., 165 Ala. 218, 51 So. 764, we said:
"To entitle a complainant to such relief it is incumbent on him to show, by clear, exact, and convincing proof that the intention and agreement he would have substituted in the instrument, was that of both parties thereto."
The rule is stated also in Hammer v. Lange, 174 Ala. 337, 56 So. 573.
In the absence of fraud, and that factor is not presented here, there must be a mutual mistake as to the recitals of the instrument — either the inclusion of some element not intended to be included or the omission of some element not intended to be omitted.
"The difficulty lies in determining, sometimes, whether the alleged mistake, sought to be corrected, falls within the rule. Chancery does not add terms to the contract, which the parties did not intend to embody in the writing. It is only when stipulations which the parties intended to express have been left out by mistake, or omitted through fraud, that the reforming powers of the chancery court can be called into exercise. If there be other contemporaneous agreements or terms, not put in the writing, and not intended to be inserted therein, this is no mistake of fact, and furnishes no ground for equitable interposition. It is simply a mistake of law in supposing that such oral stipulations may be proved and considered in construing the writing. To allow reformation, under such circumstances, would be to create for the parties a written contract, which they intentionally left in confidence, and did not intend to express in the writing." Clark v. Hart, 57 Ala. 390, 394.
This phase of the law was discussed and applied in Holland Blow Stave Co. v. Barclay, 193 Ala. 200, 69 So. 118.
If the issue of fact in this case were merely whether or not complainant's vendees agreed, on the occasion in question, to assume the payment of the taxes to be assessed against the land for the tax year of 1919-1920, and becoming, without such an agreement, a charge against the legal owner on October 1, 1919, we would be constrained to affirm the finding of the trial court that the purchasers did so agree. The testimony, except that of Lett, was heard orally by the court, and its judgment, like the verdict of a jury, will not be disturbed, unless it is plainly contrary to the great weight of the evidence, and therefore plainly wrong. State ex rel. Seibels v. Farley, 206 Ala. 172, 89 So. 510; Bell v. Blackshear, 206 Ala. 673, 91 So. 576; D. S. Motor Co. v. State, 212 Ala. 371, 102 So. 805.
But the vital and decisive question is whether the executory contract of sale is subject to reformation at the suit of complainant, for, if there was no mistake in the terms of that contract, complainant is without right to reform the deed, the obligations of which must be co-extensive with the terms of the executory agreement entered into for the very purpose of defining and limiting the mutual obligations of the parties.
Counsel for complainant are evidently grounding his right to relief upon the proposition that, though the purchasers' agreement to pay the taxes was a parol agreement made after the terms of the sale had been agreed upon and evidenced by their written contract duly signed, it was nevertheless a valid and binding undertaking, operating as an enlargement of the contract, and, prospectively, of the deed also. In support of this view counsel cite Robinson v. Bullock, 66 Ala. 548, Pioneer Sav. Bank v. Nonnemacher, 127 Ala. 521, 546, 30 So. 79, and Andrews v. Tucker, 127 Ala. 602, 29 So. 34, holding that an executory agreement may be modified or altered by the mutual agreement of the parties, without any new or independent consideration. That principle is well settled, but an important limitation must be noted.
The cases cited, and many others, were carefully reviewed by this court in Shriner v. Craft, 166 Ala. 146, 51 So. 884, 28 L.R.A. (N.S.) 450, 139 Am. St. Rep. 19, where the true principle of decision was stated by Simpson, J., as follows:
"While there are some expressions in the cases which seem to dispense with the necessity of a consideration to a modification of a contract, yet a modification can be nothing but a new contract, and must be supported by a consideration like every other contract. An analysis of the cases shows that it would be more accurate to say that the mutual obligations assumed by the parties, at the time of the modification, constitute a sufficient consideration, and if one of the parties does not assume any obligation or release any right, then a promise by the other is a nudum pactum and void." [Italics supplied.]
This principle was fully approved and followed in the later case of Montgomery County v. New Farley Nat. Bank, 200 Ala. 170, 75 So. 918.
Very clearly, if the alleged promise by Kelley and Lett was made after the contract of purchase and sale was complete, it was a purely gratuitous undertaking, and, being without consideration to support it, it did not become an element of the contract, and could not be inserted in the deed without the consent of the promisors.
This, it is true, is a proceeding for the reformation of the deed; but the right to reform the deed by imposing the stated obligation on the purchasers must rest upon the antecedent contract which fixed all the obligations of the parties, unless it has been validly amended since it became effective.
Taking into account the nature of the burden of proof resting upon complainant, complainant's own uncertainty as to whether the agreement in question was made before or after the contract of sale was complete, the clear and precise testimony of Mr. Hawkins that it was after and not before, and that it was not inserted in the contract because it was deemed unnecessary, and the delay of doing so would have incommoded one of the parties who was hurrying to catch a train, and the positive and specific denials of the respondent and his copurchaser that any such agreement was made, we are impelled to the conclusion that the decree of the trial court was based upon a mistaken view of the law. But, if it was based upon a finding of fact, viz. that the tax agreement in question was made before the contract of sale was complete, we think it was contrary to the great weight of the evidence, and ought to be set aside as plainly erroneous.
Our conclusion is that under the evidence complainant does not make out a case for relief, and that relief should be denied.
The decree will therefore be reversed, and one will be here rendered denying relief and dismissing the bill of complaint.
Reversed and rendered.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.