Henry F. Jacobs as Administrator of J. H. Dickerson, Deceased, Appellant, v. G. Parodi and Esther Parodi, his Wife, Appellees, 50 Fla. 541

Whitfield, J., (after stating the facts.) It is contended that the demurrer to the bill of complaint should have been sustained because, it is said, the allegations in effect simply mean, “That complainants being aware of the contents of the instrument they signed believed that the legal effect of the stipulation iu question was as they say they intended in the preliminaries leading up to it— that the deed should be reformed because they misunderstood the legal effect of a provision in it.” Where an instrument is drawn and executed which professes or is intended to carry into execution an agreement previously entered into, but which by mistake of the draughtsman, either as to fact or to law does not fulfil that intention or violates it, equity will correct the mistake so as to produce a conformity to the intention. 1st Story’s Equity Jurisprudence.

Section 115. Where the parties, with knowledge of the facts, and without any inequitable incidents, have made an agreement, and a writing executed by them for that purpose, expresses the agreement as it was understood and designed to be made, equity will not interfere, although oue of the parties may have mistaken or misconceived its legal meaning, scope and effect.

If, on the other hand, after making an agreement, in the process of reducing it to a written form, the instrument, by means of a mistake of law, fails to express the tract which the parties actually entered into, equity will interfere with the appropriate relief, either by way of defense to its enforcement, or by cancellation, or by reformation, to the same extent as if the failure of the writing to express the real contract was caused by a mistake of fact.

In this instance there is no mistake as to the legal import of the contract actually made; but the mistake of law prevents the real contract from being embodied in the written instrument. In short, if a written instrument fails to express the intention which the parties had in making the contract which it purports to contain, equity will grant its relief, affirmative or defensive, although the failure may have resulted from a mistake as to the legal meaning and operation of the terms or language employed in the writing.

Among the ordinary examples of such errors are those as to the legal effect of a description of the subject-matter, and as to the import of technical words and phrases; but the rule is not confined to these instances. See Pomeroy’s .Equity Jurisprudence, Volume 2, Sections 843-845. The law as thus announced finds ample support in the authorities. See Lee v. Percivel, 85 Iowa, 639; 52 Northwestern, 543 and authorities there cited; Silbar v. Ryder, 63 Wisconsin 106; Benson v. Markoe, 37 Minnesota 30, 33 Northwestern Rep. 38; Franklin v. Jones, 22 Florida 526; Jackson v. Maybee, 21 Fla., 622.

Where an agreement has been actually entered into, but the contract, deed or other instrument in its written form does not express what was really intended by the parties thereto, equity has jurisdiction to reform the written instrument so as to conform to the intention, agreement and understanding of all the parties. Claypoole v. Houston, 12 Kansas 324; Stephenson v. Elliott, 53 Kan. 550, 36 Pac. Rep. 980. See also Chamberlain v. Lesley, 39 Fla., 452, ... South. Rep. .....

Where parties have made an agreement and the scrivener by mistake failed to express it in apt words and terms, equity will reform the writing to make it conform to the agreement previously entered into between the parties. Courtwright v. Courtwright, 63 Iowa 356; 19 Northwestern 865.

The bill sufficiently states the agreement of the parties, and alleges the mistake of the scrivener in omitting to fully or sufficiently set forth the agreement in 'the-deed, and that complainants executed the deed in the belief that it did amply set forth the agreement of the parties as to the extent of the improvements mentioned, when in reality the deed does not contain such agreement; and states the injury to the complainants. No negligence of complainants is shown by the bill. The demurrer was properly overruled. The word “improvements” in the deed is ambiguous.

Its meaning is not made entirely clear by a reading of the whole deed. In the case of L’Engle v. Scottish Union & National Fire Insurance Co., 48 Florida 82, 37 Southern Reporter 462, this court said: “If a written contract is ambiguous or obscure in its terms so that the contractual intention of the parties cannot be understood from a mere inspection of the instrument, extrinsic evidence of the subject-matter of the contract, of the relations of the parties to each other and of the facts and circumstances surrounding them when they entered into the contract, may be received to enable the court to make a proper

interpretation of the instrument.” In the case of Franklin v. Jones, 22 Florida, 526, this court held: “That while equity would reform a. written instrument when by a mistake it did not contain the true agreement of the parties, yet it would only do so when the mistake was plain and the proof was full and satisfactory. That the writing should be deemed to be the sole expositor of the intent of the parties until the contrary was established beyond reasonable controversy.

That such relief would not be granted where the evidence was loose, contradictory or equivocal.” In construing.the different provisions of a contract all must be so construed, if it can reasonably be done, as to give effect to each. If one

interpretation, looking to the other provisions of the contract and to its general scope, would lead to an absurd conclusion, such

interpretation must be abandoned and that adopted which will be more consistent with reason and probability. L’Engle v. Scottish Union & National Fire Insurance Co., 48 Florida 82, 37 South. Rep. 462; Silbar v. Ryder, 63 Wisconsin, 106; Griswold v. Hazard, 141 U. S. 260. Among the witnesses whose testimony was taken by the master was G. Parodi, one of the complainants, but his testimony will not he considered as it relates to transactions and communications between said witness and J. H. Dickerson then deceased.

Section 1085 Revised Statutes of 1892. One of the witnesses, P. M. McCarthy, testified that he was present when G. Parodi and Dickerson contracted for the sale of the land in question; that Dickerson asked “if it would be satisfactory if he could clear off twenty or thirty acres. He wanted a place to put his farm hands in, those he intended to take care of the cattle, Mr. Parodi said it would be all right and they reached an understanding. It was some months after that before he had in any way cleared it at all.” When asked was there not an agreement between Mr. Parodi and Mr.

Dickerson in reference to the extent of the lands which should be cleared for improvements, he answered, “Well, the amount was twenty or thirty acres. That was the amount mentioned by Mr. Dickerson himself. He expressed it in that way, that.it would be all he would need.” Testifying further, this witness said, “four or five months after that he had selected a piece of land asked Mr. Parodi to let the land inspector, Mr. Cobb, go down, look it over and show him the lines. Mr. Cobb went down there and stated I think there was sixty acres. Mr. Dickerson stated he needed this for improvements and requested Mr.

Parodi to allow him to clear it for himself and pay for the timber and pay him $25.00 for the privilege and upon the payment- of the $25.00 Mr. Parodi authorized him to take possession of this land as improved land under the terms of the original contract.” F. H. Cobb, one of the witnesses, testified that he was riding through the land of Parodi & Co. sold to Dickerson and found a wire fence stretched around about sixty acres and that Mr. Dickerson told him that that was the part he had selected for improvements under the contract and that he wanted to buy that timber inside and clean it up as he saw fit. John E.

Stillman, a witness, testified that he was present during the negotiations between Dickerson and Parodi and that “Mr. Dickerson stated that he expected to raise cattle” on the place, “and that the clause referring to the clearing of the land at his request would only require such an amount of land to be cleared as would be needed by him for ordinary farming purposes and raising ordinary crops such as would be raised in that

section and that the amount would not be considerable.” J. J.

Sullivan testified that he knew of the negotiations and that “in substance, the conversation was that Dickerson wanted to buy this land, about 2000 acres, and wanted a place for a residence on the bay, a residence there, and in conversation said he wanted, to the best of my recollection, I should say he wanted sixty acres, about sixty acres for cultivation.” This testimony was not contradicted; and, when taken in connection with the provisions in the deed allowing the complainants five years to remove the timber from one-half of the premises to be selected by them and an additional five years for removing the timber from the other half of the lands, and for the purchase by the grantee, who was to engage in stock raising, of the logs to be cut from the lands on which the improvements were to be made, it seems clear that the word “improvements” as used in the paragraph of the instrument here sought to be reformed had reference to such portions of land usually necessary for a residence and the incidents thereto for a person engaging in stock raising, and could not have referred to any greater portion of Hie land which the grantee might arbitrarily designate as being required for improvements.

It is the duty of counsel to present the exceptions taken to testimony to the Chancellor, and to ask his rulings thereon at or before the final hearing; and where the request for such rulings is made for the first’ time in a petition for rehearing, the Chancellor may for that reason alone refuse to enter his rulings. This court has not considered the testimony of G. Parodi, and as the decree of the court is amply sustained by other testimony in the record, there was no error in refusing a rehearing. The decree is affirmed. Shackleford, C. J., and Cockrell, J., concur.

Taylor and Hocker, JJ., concur in the opinion. Parkhill, J., disqualified.