
    John Paisley, Resp’t, v. Richard H. Casey, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 7, 1891.)
    
    1. Trial—Findings.
    A general finding by a judge or referee at variance with the specific facte found must he disregarded.
    2. Contract—Reformation—Mistake.
    The parties hereto agreed orally for the performance of work for a specifled sum, aud that the architect should draw up a written contract for signature, which contract, through an error of the draughtsman, named a larger sum. In an action to reform the contract, Held, that a general finding that there was no mutual mistake should be disregarded, as the facts specifically found showed that such mistake existed, and that although plaintiff had an opportunity to examine the contract and discover the error before signing, his negligence in failing to do so was no bar to a reformation .of the contract, as defendant’s condition was in nowise altered thereby.
    Appeal from judgment in favor of plaintiff directing the reformation of a contract, and the recovery of an amount paid thereon.
    Action to reform a contract for alterations and repairs to plaintiff’s premises, pursuant to the terms of which plaintiff was to pay defendant $5,213, by reducing the sum to $4,213, in conformity with defendant’s prior written offer; and to recover the sum of $1,000 alleged to have been overpaid the defendant by mistake, and in consequence of an error in the contract.
    
      Jeroloman & Arrowsmith, for resp’t; David Leventritt, for app’lt.
   Bischoff, J.

To entitle a party to the reformation of a written •contract, it is incumbent upon him to show affirmatively either that it was executed in respect to some material matter therein omitted, or contained, under a' mutual mistake, or that one of them executed i-t in respect to such matter under a mistake, and that the other was guilty of fraud or other unconscionable conduct at the time of execution by him. Pomeroy’s Eq. Jur., III, §§ 845, 1376; Avery v. Eq. Life Ass. Soc., 117 N. Y., 451, 458 ; 27 St. Rep., 699; Born v. Schrenkeisen, 110 N. Y., 59; 16 St. Rep., 412; Albany City Sav. Inst'n v. Burdick, 87 N. Y., 40; Paine v. Upton, id., 327 ; Kilmer v. Smith, 77 id., 226; Lanning v. Carpenter, 48 id., 409 ; Pitcher v. Hennessey, id., 415.

In the present case the complaint was grounded upon the mistake of the plaintiff and the alleged inequitable conduct of the ■defendant, in that he executed the contract sought to be reformed, knowing at the time that the sum of $5,213, instead of $4,213, was erroneously therein stated to be payable to him for the improvements to be made by him to plaintiff’s premises, such •conduct, if proved, being fraud.

It does not appear that the trial judge found the fact of such knowledge, or other inequitable conduct, on the part of the defendant, nor did he find that defendant did not have such knowledge or that he was not guilty of other inequitable conduct, in and about the execution of the contract by him, and while in such a •case the appellate court may, if the evidence would warrant it, presume in support of the judgment that a fact essential to uphold it was found and considered by the trial judge, but omitted from the findings appearing, Sheldon v. Sherman, 42 N. Y., 484, 489; Meyer v. Lathrop, 73 id., 315, 321; Hays v. Miller, 70 id., 112, 116; Grant v. Morse, 22 id., 323 ; Rider v. Powell, 28 id., 310; Doty v. Carolus, 31 id., 549 ; Oberlander v. Spiess, 45 id., 175, we are precluded from affording the plaintiff the advantage of such a presumption, because of the presence in the case at bar of the refusal of the trial judge to find, as propositions of fact established by the evidence presented on plaintiff’s behalf, that the defendant knew of the error or was otherwise guilty of fraudulent conduct when he executed the contract. Meyer v. Amidon, 45 N. Y., 169, 174: Comstock v. Ames, 1 Abb. Ct App. Dec., 411. It is clear, therefore, that unless the findings appearing in the case present some other ground which supports the conclusion that plaintiff is. entitled to the relief accorded him below, the judgment now appealed from must be reversed.

We are of the opinion that the specific facts found, and which upon examination appear to be abundantly supported by evidence of the conclusive character required in actions of this kind, in the absence of knowledge of the error or other fraudulent conduct of the defendant at the time of the execution of the contract by him, present such other ground and admit seemingly of no other rational deduction than that the contract was executed by both parties under a mutual mistake concerning the sum therein mentioned as payable to the defendant

These specific facts are that the parties to this action, prior to the execution of the contract by each of them, orally agreed and arranged that it should be drawn up and prepared for their signature by the architect, and should fix $4,213 as the sum to be paid by plaintiff to the defendant; that at no time were the terms of that oral agreement and arrangement departed* from by either party; that through the error of the draughtsman employed by the architect, the sum was stated in the contract at $5,213 ; that both parties executed the contract, and that plaintiff did so in ignorance of the error and believing the contract to be in every respect in accord with the terms of the oral agreement. Now, if it be, as we must assume from the absence of anything appearing to the contrary, that defendant did not know of the error and -was not guilty of other fraudulent conduct when he executed the contract ; if he agreed, as found by the trial judge, to make a contract at $4,213, and directed it to be so drawn up; if the sum of $5,213, instead of $4,213, was stated in the contract through an error by the draughtsman, and that plaintiff executed the contract under a mistake as to the sum therein mentioned, how did the defendant execute it if not also under a like mistake?

We do not lose sight of a general finding made at the request of the defendant, that the evidence presented upon the trial of this cause does not establish any mutual mistake upon the part of the plaintiff and defendant,” but it is a well defined rule governing the construction of the report of the referee, or the decision of a trial judge, that a general finding at variance with the specific facts found must be disregarded, Bennett v. Buchan, 76 N. Y., 386; Phelps v. Vischer, 50 id., 69, and in the application of this rule the general finding referred to is rendered impotent for the purposes of reversal.

Neither did the proof of mutual mistake in the execution of the contract constitute a variance of so grave a character between it and the allegations of the complaint as to amount to a failure of proof. Plaintiff did not establish his cause of action in all the details in which it was alleged, but he, nevertheless, substantiated his right to have the contract set forth in the complaint reformed in the particulars mentioned in Ms prayer for relief. This, under the provisions of the Code of Civil Procedure, §§ 539, 540, 541, was, at most, a variance between the pleadings and the proof which, if material, was amendable, and if immaterial, could have been disregarded and the fact found according to the evidence. That it was not material in the case before us is plainly discernible from the fact that the evidence required to prove a mutual mistake of the parties was necessarily embraced in that required to establish the mistake of the plaintiff and execution with knowledge of the error by the defendant; that it was, therefore, relevant to the issues created by the pleadings, and that for that reason the defendant was not, and did not claim to have been, misled or surprised by its introduction at the trial.

Pursuant to defendant’s further request the trial judge found as matters of fact established by the evidence that plaintiff had ample opportunity for the inspection of the contract before its execution by him; that with the exercise of ordinary diligence plaintiff could have discovered the discrepancy between defendant’s written offer and the contract, and that the plaintiff was negligent in that he failed to make such discovery. It does not, however, appear that in consequence of such negligence the defendant’s condition was altered in any respect, or that he sustained any loss, or was prevented from making any gain, or that upon the reformation of the contract as he as well as the plaintiff intended to make it, and the return of the sum paid him in excess of the sum he expected to receive for the improvements to plaintiff’s premises, he would not now be in precisely the same condition in which he would have been had the contract originally been executed as the parties intended. In such a case plaintiff’s negligence should not be a bar to his relief, nor should the defendant be permitted to avail himself thereof to his unconscionable advantage by insisting upon the performance of a contract neither intended to make, Albany City Sav. Inst. v. Burdick, 87 N. Y., 40; Andrews v. Gillespie, 47 id., 487; Kilmer v. Smith, 77 id., 226, or to retain the moneys to which he had no claim of right and which he knew or ought to have known were paid to him under mistake. Lawrence et al. v. American Nat. Bank, 54 N. Y., 433; Union Nat. Bank of Troy v. Sixth Nat. Bank of N. Y., 43 id., 452; Mayer v. The Mayor, etc., of N. Y., 63 id., 455.

We have considered the several exceptions to the trial judge’s rulings, respecting the evidence, and urged on this appeal for reversal, but are unable to agree with counsel for appellant that they or any one of them present error.

The judgment should be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.  