
    (68 Hun, 299.)
    ROBERTS v. DERBY.
    (Supreme Court, General Term, Fifth Department.
    April 13, 1893.)
    1. Equity—Reeobmation—Mistake.
    One who seeks to reform a deed on the ground of mistake must establish, in the clearest and most satisfactory manner, that the alleged in-tention to which he desires it to be made conformable continued concurrently in the minds of all the parties down to the time of its execution, and also must be able to show precisely the form to which it ought to be brought.
    3. Same—Evidence.
    A written contract for the sale of standing hemlock timber, to be sown into lumber on the premises by the purchaser, minutely guarded the rights of the parties, prescribing the time within which the work was to be done, the time of payment, etc. In an action by the purchaser to reform the contract, he and his hired man testified that the seller had agreed to skid the logs for one dollar per thousand feet, and that this provision had been omitted from the written contract by mutual mistake, while the seller ■denied that he ever so agreed. It further appeared that when the contract was read the purchaser made no suggestion to the scrivener as to the omission of such provision, though the contract obligated the seller to fell the timber, and peel the bark therefrom, and that the purchaser subsequently let the work of skidding the logs to a third person for $1.50 to $1,85 per thousand feet, without making any complaint or suggestion as to the seller’s agreement, and refusal to perform it. Held, that the purchaser had failed to prove, by a preponderance of clear and satisfactory evidence, that the seller had agreed to' do the work, that the parties intended to have such agreement incorporated in the written contract at the time of its execution, and that it was omitted by mutual mistake, and hence a reformation of the, contract would not be decreed.
    8. Same—Appeal— Changing Form op Action.
    An action to reform a written contract by the insertion of a provision alleged to have been agreed on orally, and omitted by mutual mistake, cannot, on appeal, be converted into ah action at law for breach of the paroi agreement.
    Appeal from judgment on report of referee.
    Action by Alpha Roberts against Alanson Derby for the reformation of a written contract, and its enforcement as reformed. From a judgment in plaintiff’s favor, defendant appeals.
    Reversed.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    Fred J. Blackman, for appellant.
    J. M. Congdon, for respondent.
   LEWIS, J.

This action was brought to obtain reformation of a written contract, and for damages for a breach thereof as reformed. The learned referee to whom the action was referred found that by the mutual mistake of the parties the contract failed to express their actual agreement, and he directed judgment for the plaintiff, reforming the contract, and for damages for the breach thereof; and the question presented for our decision is whether the evidence sustains his findings.

The defendant, Derby, was the owner of a farm in the town of Persia, Cattaraugus county, on which was a considerable quantity of hemlock and other timber. He purchased the farm of Franklin D. Locke, Esq., of Buffalo, and Mr. Locke held a purchase-money mortgage thereon of $1,900. The defendant was desirous of selling the timber on the -farm, with a view of applying the money obtained therefrom in part payment of the Locke mortgage. Plaintiff owned a portable steam sawmill, and wished to purchase the timber for the purpose of converting it into lumber, and marketing it. Negotiations were had between the parties which resulted in a verbal agreement for the sale of the timber to the plaintiff for the sum of $1,000. Plaintiff testified that, while negotiating for the purchase of the timber, he stated to the defendant that he knew what the labor of converting the timber into lumber, and marketing it, would cost, with the exception of the cost of skidding the logs to the mill, and that the defendant thereupon said that he would do, or cause to be done, that part of the labor, for one dollar per thousand, and that he told defendant, if he purchased the timber, he should have the job of skidding the logs. Plaintiff further testified that he was to have a week’s time to determine if he would make the purchase, and that at the end of the week he informed the defendant that he would take the timber, and that they agreed to go to Buffalo, and see Mr. Locke, and arrange the terms of the contract, and have Mr. Locke put it in writing, and that they met Mr. Locke, and Derby stated to him the bargain, and all’about it, and that Mr. Locke drew the contract, and read it over to the parties, and they executed it. Ho mention was made in the contract about skidding the logs. Plaintiff claims that by the mutual mistake of the parties that part of the agreement was omitted from the written contract. The plaintiff and his hired man, McMillan, testified that the defendant agreed to skid the logs for one dollar per thousand. The defendant admitted that he told the plaintiff, during the negotiations, that he thought that work could be done for a dollar a thousand, but that he was so busy with other work that he could not do it, but would assist the plaintiff in finding some one to do the work; but he denied that he agreed to do the work. The facts and circumstances tend, to a considerable extent, to corroborate the defendant’s contention. Concededly, nothing was said about skidding the logs to Mr. Locke. The contract contains everything Mr. Locke was told to put in it. It bears date on the 20th day of May, 1890, and provides that Mr. Derby, party of the first part, shall proceed with reasonable diligence to fell all the hemlock timber upon the premises which is fit for cutting into timber; and shall peel the bark therefrom, which he reserves to himself; that Boberts, party of the second part, shall forthwith erect upon the premises a steam sawmill, and with due diligence proceed in the work of sawing into lumber and timber all the hemlock and other timber upon the premises, aside from the beech and maple; that as rapidly as the timber is sown it shall be marketed by the plaintiff, as the agent of the defendant, and that out of the purchase money the plaintiff may retain $3 per thousand feet, and pay the remainder to Mr. Locke, to be applied upon the mortgage until the sum of $1,000, and interest thereon from date, is paid; that the surplus received from the timber shall belong to the plaintiff. It is further provided that the title to the timber and lumber shall remain in the defendant until the $1,000 are fully paid. It contains other provisions carefully guarding the defendant against loss from the inability of the plaintiff to pay for the timber. The plaintiff is required to commence operations by the 10th day of July, 1890, and complete the work of marketing the lumber and timber by the 1st of February, 1891. Skidding the logs at $1 per thousand would have amounted to $500 or $600. Plaintiff testified that nothing was said as to how or when he was to pay the defendant for his labor for skidding the logs. After having so carefully protected the defendant in the written agreement against loss by plaintiff’s failure to pay for the timber, it is a significant fact, if such an agreement was made, that the terms of payment for the work were not'mentioned. If plaintiff’s version of the contract is correct, the defendant was obligated to do the work, and wait for his pay until the job was entirely completed. The record shows that plaintiff was pecuniarily irresponsible. Plaintiff testified that on their way home from Buffalo, after executing the contract, he and defendant had a conversation about skidding the logs, and defendant said that he would not do the work for three dollars a thousand, for the reason that he had so much other work to do, and that he would have to give up the job; that he told Derby he supposed he had the job. No suggestion was made by the plaintiff that the agreement for skidding the logs had been, by mistake, left out of the written contract; and there is not in the entire case any direct evidence that it was ever agreed or suggested that that part of the agreement was to be included in the written contract. It could properly have been put in the writing, or allowed to rest in paroi. The contract obligated Derby to fell the trees and strip the bark. It is quite remarkable, if the plaintiff understood that the agreement to skid the logs was to be included in the contract, that he did not suggest it to Mr. Locke when he heard the clause read, requiring defendant to fell the trees and strip the bark. If he is right in his contention, he was at liberty to refuse to perform the contract when Derby informed him that he would not do as he had agreed; but instead of so doing, very shortly after signing the contract, he entered into negotiations with other people to do that work, and finally agreed to pay $1.50 to $1.85 a thousand therefor. He testified that when he was negotiating with some parties to skid the logs the defendant was present, and that he called him one side, and privately inquired of him if he intended to do that work, and that defendant refused, (this interview was denied by the defendant,) and that thereupon he let the contract to another, without making any complaint, or suggesting that the defendant had made such an agreement, and refused to perform it. Plaintiff testified that the defendant admitted he had agreed to do the work, but gave as an excuse for not performing that he supposed, when he agreed so to do, that the work could be done through the following winter; that he did not suppose the plaintiff was to saw the timber so soon; and yet, at the time this admission was alleged to have been made, they both knew that the written contract required the plaintiff to commence doing the work by the 10th of July, and to have it completed by the 1st day of February.

To entitle the plaintiff to a judgment reforming this written instrument, it was incumbent upon him to prove, by a preponderance of clear and satisfactory evidence, that the defendant not only agreed to do the work, but that it was agreed it should be incorporated into the written contract, and that by the mutual mistake of the parties it was omitted therefrom. A person who seeks to rectify a deed on the ground of mistake must establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be made conformable continued concurrently in the minds of all parties down to the time of its execution, and also must be able to show exactly and precisely the form to which the deed ought to be brought. Bisp. Eq. § 469; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290. We think the plaintiff came far short of making such a case.' On the contrary, the preponderance of the evidence tended to establish the defendant’s contention.

The plaintiff elected to bring an equitable action for the reformation of this contract, and it was tried as such. It is too late, upon appeal, to seek to convert it into a law action. Although the distinctions between actions at law and suits, in equity are abolished, the distinguishing features of the two classes of remedies, legal and equitable, are as clearly marked and rigidly observed as they ever were. Chipman v. Montgomery, 63 N. Y. 230. If a party brings an equitable action when the same court administers both systems, he must maintain his action upon equitable grounds, or fail, even though he has a good action at law on the trial. Mann v. Fairchild, 41* N. Y. 111; Bockes v. Lansing, 74 N. Y. 437; Oakville Co. v. Double-Pointed Tack Co., 105 N. Y. 658, 11 N. E. Rep. 839. Had the plaintiff brought his action to recover damages for the breach of a paroi agreement, the defendant would have been entitled to a jury trial. The judgment appealed from should be reversed, and a new trial granted, with costs to abide the final award of costs. All concur.  