
    Reiff v. Mullholland et al.
    AZZ allegations of pleading to be considered — In determining effect of any — Cross-petition of defendant — For reformation of written instrument — Judgment as to allegation of mistake, conclusive, when — To facts admitted and found by court — Court should apply law — Law of pleading — (Agency in promissory notes.)
    
    1. All the allegations of a pleading should be considered in determining the effect of any of them, and a general denial of the allegations of a petition is unavailing if inconsistent with the express admissions of the answer.
    2. A defendant having interposed a cross-petition praying for the reformation of a written instrument on which the plaintiff’s action is founded, the finding and judgment of the court thereon while it remains in forcé is, in the further progress of the case, conclusive as to the allegations of mistake.
    3. When by the admissions of the parties and the finding of the court all the material facts are conclusively established the court should apply the law to such facts and render the judgment which it requires.
    (Decided November 19, 1901.)
    Error to tbe Circuit' Court of Seneca county.
    On August 20, 1890, plaintiff filed a petition in tbe court of common pleas to recover of tbe defendants individually on a promissory note of wbicb tbe following is a true copy:
    “McCutchenville, April 28, 1883.
    “For value received, we, tbe Trustees of tbe Mc-Cutcbenville Cemetery Association, promise to pay to Henry Reiff, or bearer, six hundred and seventy-nine dollars and sixty-tbree cents, one year after date, with eight per cent, interest annually.
    “Levi H. Mullholland,
    “Owen Haines,
    “Trustees.”
    
      The defendants answered as follows: They denied generally the allegations of the petition and alleged that in June, 1875, the McCutchenville Cemetery Association, then unincorporated, purchased from one Starkey, land for cemetery purposes, and for the purchase price executed to him a promissory note signed by its trustees. Afterwards in April, 1877, the association was duly incorporated. Starkey thereafter sold and transferred the note to one Lott who sold and transferred it to the plaintiff. In April, 1879, the note was renewed by the execution to the plaintiff of another by the trustees of said association, the note being for the sum of $579.45, with eight per cent, interest payable to the plaintiff or bearer. On xlpril 28, 1883, to renew the note last mentioned, the note set ou.t in the petition was executed; and in that connection the defendants allege: “Wherefore the defendants say that the said promissory note referred to in the petition was wholly without consideratiqn.” The remainder of the answer is as follows:
    “3. And for further answer herein the defendants say:
    “That as between the plaintiff, Henry Reiff, as payee of the promissory note mentioned and referred to in the petition, and the defendants, Levi H. Mullholland and Owen Haines, as makers thereof, no consideration whatever moved from the said Henry Reiff to the said Levi H. Mullholland and Owen Haines for the making of the same, wherefore the said promissory note is wholly without consideration.
    “4. And for further answer herein the defendants say:
    “That on the day when the said promissory note mentioned and referred to in the petition was executed, and before the defendants would consent to sign the same, the plaintiff promised and agreed to and with the defendants that they, the defendants,, should not be personally liable on said promissory note, but that only the property of the said cemetery association should be holden therefor.
    “That thereupon the defendants, on the faith of the said promise and agreement of the plaintiff, signed said promissory note, as trustees of the said cemetery association, and the plaintiff accepted the same with the full understanding that the defendants should not be personally liable thereon.
    “o. And for further answer herein the defendants say:
    “That on the 28th day of April, 1883, the plaintiff owned and held, as payee thereof, a certain promissory note for the sum of five hundred and seventy-nine dollars and forty cents, with eight per cent, interest annually, dated April 13, 1879, and signed by the plaintiff and John Row and James Starkey, trustees of the McCutchenville Cemetery Association.
    “That on said 28th day of April, 1883, it was mutually agreed, by and between the plaintiff and the defendants, who were then duly elected and acting trustees of said cemetery association, that the defendants, as such trustees, in lieu of said note so held by the plaintiff as aforesaid, should execute and deliver to the plaintiff such proper instrument, in writing, as would bind the property of the said cemetery association for the payment of the sum of six hundred and seventy-nine dollars and sixty-three cents, with eight per cent, interest from that date, but which would in no wise make the defendants personally, liable for said sum, or any part thereof.
    “That thereupon the said instrument in writing, or promissory note, mentioned and referred to in the petition, was drafted, and the defendants signed the «ame as such trustees, and the. plaintiff accepted the same, under the mutual mistake and belief that the instrument in writing correctly stated and embodied their agreement aforesaid.
    “Whereupon the defendants pray that the said instrument in writing, or promissory note, may be reformed so as to properly and correctly embody the true agreement so made by and between the plaintiff and the defendants as aforesaid; and for such other relief as is proper.”
    The plaintiff replying admitted that the note upon which he counted was given in renewal as alleged in the answer, and denied all other allegations of the answer. He further alleged that the defendants were members of the unincorporated association at the time of the purchase of the lands which were the consideration of the first note, that they have ever since been members of said association and that they are, therefore, liable for the purchase price of the land.
    The cause having been tried in the court of common pleas upon the allegations of mutual mistake upon which the defendants in their cross-petition pray for a reformation of the note so that it should be the obligation of the corporation alone, the cause was appealed to the circuit court and there submitted on the cross-petition, the other pleadings and the evidence; and that court found in favor of the plaintiff and dismissed the cross-petition. That judgment remains in full force. In the court of common pleas the cause was tried three times — the last trial at least being after the judgment of the circuit court — on issues >f fact supposed to survive the judgment of the circuit court adverse to the reformation of the note. The last trial resulted in a verdict and judgment in favor of the defendants and that judgment has been affirmed by the circuit court. Its reversal is the object of the present petition in error. On the trial in the court of common pleas the defendants notwithstanding the objections of the plaintiff were permitted to introduce evidence tending to show that they refused to sign the note until they were assured by the plaintiff that he would not regard them as individually liable thereon, and that he would look to the corporation alone for payment. The plaintiff in his testimony denied such conversation or agreement. The court adhering to the view upon which such evidence was admitted charged the jury as follows:
    “It is claimed by the defendants that they signed said note with the understanding that said note was so executed on behalf of said association and was the note of the said association, and that the plaintiff at the time he received said note so understood such to be the fact, and that he, so knowing the fact, received and accepted said note of said association, and understood and agreed that these defendants were not to be held liable thereon as individuals. All of this is denied by the plaintiff in his reply.
    “This being an affirmative defense made by the defendants, the burden of proof as to such defense is upon the defendants. That is to say, the defendants are required to establish such defense by a preponderance of the evidence before you can find thereon in favor of the defendants.
    “The jury are to determine from the evidence in the case what the fact is. Was it the intention of the parties to this note when the same was made, executed and delivered, that said note was and should be held to be the note of the cemetery association, and not the individual note of Mullholland and Haines? If such was the understanding, and the plaintiff received and accepted said note with the understanding and agreement, then he cannot recover from the defendants in this action, for the right of action of the plaintiff would then be against such association, and not against the defendants individually. If you find from the evidence and circumstances proved that it was the intention and understanding of the parties to this note, at the time it was executed and delivered, that the note in controversy was and should be held to be the note of the association, and not the note of Mullholland and Haines individually, and the plaintiff received and accepted the note with that understanding and agreement, then the plaintiff cannot recover from the defendants in this case, for the reason I have already stated.
    “If, on the other hand, you find from the evidence there was no such understanding between said parties as defendants claim, but that such note was given as. the note of said defendants, then they would .be liable thereon.
    “In determining this question, you should take into consideration all the evidence adduced and the circumstances proved in the case. The note sued on will be in evidence before you, and you should also consider the evidence as to the facts and circumstances under which the note was given — the consideration of such note, and all the other facts and circumstances appearing in evidence in this case.
    “Determining this question will, of course, determine whether the plaintiff is entitled to recover. And if, under the instructions given you, you should find for the plaintiff, you will compute interest according to the terms of the note and the amount you find by such computation you will insert in the blank I have prepared for that purpose, and your foreman will sign that verdict. .
    “If, on the other hand, you find that the note was and is not the note of said defendants, but was and is the note of the association, then your verdict should be for defendants.”
    The trial judge indicated a similar view of the subject by refusing to give in charge to the jury propositions which were requested by counsel for plaintiff.
    
      Brewer c£ Brewer, for plaintiff.
    
      Seney & Sayler, for defendants.
   Shauck, J.

In view of former decisions of this court and of rules which elementary writers have made familiar, the reason for a report of this case will be found in the fact that our conclusion is opposed to that which was reached by the courts below', rather than in the hope of making a valuable addition to juridical literature.

That the words “trustees et cetera” are only descriptive and that the signers of the pote are individually liable according to its terms may be affirmed on the authority'of Titus et al. v. Kyle, 10 Ohio St., 444, and Bank v. Cook, 38 Ohio St., 442. This liability appears to have been recognized when the defendants filed their cross-petition alleging that the note was drawn and executed in its present form by mistake, and that it was intended that the instrument should be .the obligation of the association instead of the defendants, and praying for its reformation so that it should conform to that intention. That is the proper mode of seeking relief on account of mistake. It recognizes the familiar doctrine that mistakes in written instruments are not corrected at law, that in the absence of fraud the written stipulations of parties must stand until' they are corrected in equity where the facts necessary to reformation are found by the court instead of a jury, and where there is required evidence of greater probative effect than a mere preponderance. The judgment of the circuit court being unreversed concluded the inquiry as to mistake in the execution of the instrument. The record shows that the last trial in the court of common pleas proceeded as though upon appeal from the judgment of the circuit court dismissing the cross-petition to a jury in the court of common pleas. Not only was such a retrial of the issues as to mistake wholly unauthorized but the judgment of the circuit, court upon that question when the case was before it on appeal left no issue for trial. True the answer contains a general denial of the allegations of the petition and an inferential averment that the note was executed without consideration. But these portions of the an-, swer are argumentative merely. They are unavailing in view of the express admissions of the same pleadings that the defendants executed the note, and that it was given in renewal of a former note for the purchase price of land sold and conveyed by the payee, and the implied admission that no portion of it had been paid. There is nothing of merit in the answer except the allegations of mistake in the instrument with the prayer for its reformation on that ground. As to those allegations the adverse judgment of the circuit court on the appeal was final and nothing remained to be dope but to apply the law to a state of facts thus conclusively established by the admissions of the parties and the judgment of the circuit court. The record does not permit the view that the case, was finally tried as if upon other issues. However forcibly the testimony of the defendants themselves may have tended to show that the circuit court should have reformed the note according to the prayer of their cross-petition, it affirmatively shows that without such reformation the plaintiff is entitled to recover.

Judgments of the circuit court and common pleas courts reversed and judgment' for the plaintiff.

Minshall, C. J.; Williams, Btjrket, Spear and Davis, JJ., concur.  