
    [No. 11183.
    Department One.
    August 16, 1913.]
    Bridget Codd, as Executrix etc., Appellant, v. Joshua B. Langley et al., Respondents.
      
    
    Reformation of Instruments — Right to. Written instruments may be reformed to express tbe actual oral agreement and intention of tbe parties.
    Same — Evidence—Sufficiency. Mistake, as ground for tbe reformation of written instruments, must be established by tbe clear preponderance of tbe evidence.
    Same — Defenses—Acquiescence. Where tbe right to reformation was claimed as soon as enforcement of tbe contracts was sought, and there was no injury by tbe delay, there was no acquiescence.
    Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered November 2, 1912, upon findings in favor of the defendants, in an action on contract, tried to the court.
    Affirmed.
    
      Codd, Hutchinson & Codd, for appellant.
    
      Davies & Cornell, for respondents.
    
      
       Reported in 134 Pac. 467.
    
   Per Curiam.

This is a suit upon written instruments precise and definite in all their terms. The defendants pleaded facts which, if proven, entitled them to a reformation of these instruments, so as to express the antecedent oral agreement. The court found all the issues in favor of the defendants.

It is well settled that reformation may be had to make written instruments express the actual oral agreement and intention of the parties. Snell v. Insurance Co., 98 U. S. 85. Keeping in mind the rule that the right to reform a written instrument upon the ground of mistake must be established by the clear preponderance of the evidence (Heffron v. Fogel, 40 Wash. 698, 82 Pac. 1003), we are not prepared to say, after a careful reading of the record, that the case was not correctly decided.

The appellant was not injured by the delay in asserting the right to a reformation. It was claimed at least as soon as the contracts were sought to be enforced, hence there was no acquiescence.

The decree is affirmed.  