Wemple v. Stewart , 22 Barb. 154 ( 1856 )

By the Court, Paige, J.

The defendants make the following points : 1. That the referee should have reformed the contract as claimed in the answer of the defendants ; 2. That the referee erred in receiving evidence of the price of plank at any other place than the place of delivery; 3. That by the terms of the contract the defendants were not bound to saw and deliver any more plank than they pleased, during the winter ensuing the date of the contract; 4. That the terms of the contract only required the defendants to deliver the plank which had been previously sawed at their mill and. was at such mill at the date of the contract; 5. That the defendants were not bound to deliver any plank to the assignees of Gardinier & Van Den-burgh without notice of the assignment, and an offer on the part of the assignees to fulfill the contract; 6. That the damages allowed by the referee were more than the evidence and the contract warranted.

The statements in the answer show no right to demand a reformation of the contract, by conforming it to the "alleged intention of the parties. A written contract, in the absence of fraud, can only be reformed, where it is shown by satisfactory proof that there is a plain mistake in the contract, by the accidental omission or insertion of a material stipulation, contrary to the intention of both parties, by expressing something different in substance from the truth of that intent, and under a mutual mistake. (1 Story's Eq. Jur. sec. 152, 155, 156, 157. 2 John. Ch. 595, 596.) The answer, in setting up the mistake in the written contract, should have stated that the parties agreed to sell and purchase only the plank which the defendants then had at their mill, and then should have alleged that in reducing the contract to writing this limitation of the quantity sold and purchased was accidentally omitted, contrary to the intention of the parties: merely alleging that" the parties intended to sell and purchase the plank then at the mill of the defendants, is not sufficient to entitle the defendants to a reformation of the contract in accordance with that intention. To show that a written contract does not conform to the actual agreement made and intended to have been reduced to writing, the actual agreement should be stated, and the mistake in reducing it to writing alleged. (3 How. Pr. Rep. 358.) I am inclined to believe that if the mistake in the written contract, and the claim to have it reformed, had been properly stated, it would have been a counter claim within the meaning of the first sub. of sec. 150 of the code. A counter claim is there defined to be, “ A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action.” The counter claim attempted to be set up by the defendants is a cause of action arising out of the contract set forth in the complaint as the foundation of the plaintiffs’ claim, and is connected with the subject of the action. (Voorhies’ Code, 208, 209, Ath ed.) If the counter claim had been properly set up, a reply would have been necessary. {Code, sec. 168. 3 How. 358.)

The evidence in relation to the price of spruce plank at Fonda, Troy and Albany, was properly received. There was no evidence of the value of the plank at Fultonville, the place of delivery ; at least, none had been introduced at the time the evidence as to its value at the other places was received. Where there is no evidence of the value of the goods at the place of delivery, evidence is admissible of their value at other places in the neighborhood of the place of delivery, and also at distant places where there is a market for the same articles, in connection with proof of the expense of transportation between such places and the place of delivery. (5 Denio, 56. 8 Wend. 435. 7 Barb. 18.) It is only where the evidence is clear and explicit as to the value of the article at the place of delivery, that evidence of value at other places is inadmissible. (8 Wend. 436.)

I think the construction put upon the first clause of the contract, by the referee, was correct. By its terms the defendants sold and agreed to deliver to Gardinier & Van Denburgh 30,000" merchantable spruce plank. The words “sawed at our mill” amount to an affirmation by the defendants that that quantity had been sawed at their mill, and were then in their possession, owned by them. The agreement of the defendants to sell and deliver 30,000 plank assumes that they have sawed that number of plank and have them on hand, and that they have it in then* power to deliver them according to the agreement. If the words “ sawed at our mill ” should be construed to refer to plank thereafter to be sawed, they would create an obligation on the defendants to saw the quantity stipulated, and to deliver them, as provided in the contract. This construction is confirmed by the second clause of the contract, in which the defendants agree to deliver to Gardinier & Van Denburgh, “in addition to the above 30,000, all the merchantable plank, &c. that we may saw,” <fcc. Here they again assume, and impliedly assert, tha.t they are obligated by the first clause of the contract to deliver to Gardinier & Van Denburgh 30,000 plank. If then the defendants had not on hand, at the date of the contract, 30,000 plank, they were bound to saw a number equal to the deficiency, and deliver them according to their contract.

But I think that the referee erred in his construction of the second clause of the contract. It seems to me that by that clause the defendants did not obligate themselves to saw at their mill any spruce planlc. The obligation extended no further than to require them, in case they elected to saw merchantable spruce plank at their mill during the ensuing winter, to deliver all such plank so sawed, at the yard of Gardinier & Van Denburgh. The agreement is to deliver all the merchantable spruce plank that they may sato, &c. These words are not promissory in their nature, except so far as relates to the delivery of plank which they shall saw during the ensuing winter; nor do they import a promise or undertaking to saw any particular, or any, quantity of merchantable spruce plank during the ensuing winter. To construe this clause of the contract as requiring the defendants to sawr all the plank they should be able to saw the next winter, &c. would be making a new contract for the parties.

If this construction of the second clause of the contract is correct, the referee erred in allowing damages to the plaintiffs for the non-delivery of merchantable spruce plank of the description specified in the contract, not actually sawed at the mill of the defendants during the winter ensuing the date of the contract. The breach of the first clause of the contract was complete before the assignment of Gardinier & Van Den-burgh to the plaintiffs. The 30,000 plank were, by the contract, to be delivered during the winter of 1852 and 1853 and the spring of 1853; and the assignment was not executed until the 14th of September, 1853. But if the assignment had been delivered before the breach was complete, the omission of the assignees to give notice of the assignment and to offer to fulfill the contract on the part of Gardinier & Van Denburgh, did not discharge the defendants from their obligation to fulfill the contract, on their part.

[Clinton General Term, May 6, 1856.

The judgment entered upon the report of the referee must be reversed, and his report set aside, and the action must be referred back to him to be retried.

C. L. Allen, James, Rosekrans and Paige, Justices.]