Summary
In Robert Co., supra, the Supreme Court of Georgia adopted § 552, Restatement, Torts 2d; however, this does not mean that it automatically adopted other subparts, the commentary, or explanations, which is a synthesis of what the reporter and commissioners believed to be the majority of states' position on such area of the law.
Summary of this case from Mindis Acquisition Corp. v. BDO Seidman, LLPOpinion
33201.
SUBMITTED JANUARY 20, 1978.
DECIDED FEBRUARY 7, 1978.
Reformation. Newton Superior Court. Before Judge Ridgway.
Reuben A. Garland, Jr., for appellants.
E. A. Crudup, for appellee.
Appellee sued to reform a deed granting appellants all of appellee's interest in a security deed and note. The deed in question was given contemporaneously with, and as a part of, a settlement of a prior suit. The trial court construed the settlement and deed, and concluded that the intention of the parties was for appellee to convey 47.41 percent of her interest, rather than all of it, and reformation was ordered.
1. Appellee's motion to dismiss the appeal is denied.
2. Appellant's enumeration of error regarding the denial of a jury trial is deemed abandoned under Rule 18 (c) (2).
3. The remainder of appellants' enumerations of error amount to a challenge to the sufficiency of the evidence of mutual mistake, and of the actual intention of the parties. Code § 37-215; Crim v. Alston, 169 Ga. 852 ( 151 S.E. 807) (1930). We need not consider the parol evidence in this case, for the intention of the parties and the existence of a mutual mistake is clear from the terms of the settlement agreement and deed. The deed purports to convey all interest in the security deed, and then goes on to state that appellee "specifically conveys all of its [sic] interest in the real estate conveyed thereby but limited to the terms of said Compromise and Settlement..." A proper construct of the compromise and settlement shows that the intention of the parties, as manifested by the contract, was that only 47.41 percent of appellee's interest in the security deed and note be transferred. Because the deed conveys all interest "limited to the terms" of the settlement agreement, the earlier grant in the deed of all interest must have been a mistake. That the mistake was mutual is proven by the assent of all parties to the settlement. The decree of reformation was proper. Gibson v. Alford, 161 Ga. 672 ( 132 S.E. 442) (1925).
Judgment affirmed. All the Justices concur.