
    Greil v. Tillis.
    
      Bill for Reformation of Contract.
    
    (Decided Nov. 24, 1910.
    Rehearing denied Feb. 16, 1911.
    54 South. 524.)
    1. Reformation of Instruments; Mistake; Failure to Read.— Where no fraud is practiced on the signer to induce the signing, generally, an unexplained signing of an instrument without excuse for failure to read it or to make proper inquiry is not ground for reformation of instrument.
    2. Same. — Where the parties to a written contract dealt with each other at arm’s length, and no fraud was practiced, and a copy of the contract was furnished to the parties and read over, neither party was entitled to a reformation on the ground that the contract did contain stipulation which did not represent the agreement of the parties.
    3. Same; Evidence; Sufficiency. — The burden of showing by clear and satisfactory evidence that the contract does not express the true agreement is on the one suing to reform the contract, and where the proof is uncertain in any material respect, the court cannot grant relief.
    Appeal from Montgomery City Court.
    Heard before Hon. William H. Thomas.
    Bill by N. J. Greil against Bichará Tillis, to reform a contract. Judgment for respondent and complainant appeals.
    Affirmed.
    The contract referred to was a contract to sell certain personal property situated within the limits of what was then known as “Electric Park,” owned by the Montgomery Amusement Company. It is alleged that the stuff was itemized, and an estimate of value placed opposite each item. It is averred that, in drawing the contract, the draughtsman committed a mistake in the description of the property, by adding a general descriptive clause, which is as follows: “Together with all other structures, buildings, improvements, etc. (except such as are now owned by the Montgomery Street Kail way), and. all of the amusement devices, property, and effects of every character and description whatever, now located and being in said Electric Park” — and this was contrary to the mutual agreement and understanding of the parties to the contract. As amended, the bill sought a rescission on the ground that this interpretation of the contract was a fraud on the complainant, and was not part of the agreement.
    Coleman, Dent & Weil, and J. M. Chilton, for appellant.
    The bill was properly filed in a double aspect,, since both aspects entitled the complainant to substantially the same relief. — Hall & Farley v. Henderson, 114 Ala. 601. Mutual mistake is ground for equitable relief, for reformation of the instrument. — Houston v. Faul, 86 Ala. 232; Stevens v. Hertzel, 119 Ala. 333; Sough v. Smith, 132 Ala. 204. The proposition is well settled that fraud or inequitable conduct on the part of one party to a contract and a mistake on the part of' the other will justify a reformation. — Wilson v. W. E. Go., 77 N. C. 445; Payne v. Jones, 75 N. Y. 592; Wells v. Yates, 44 N. Y. 525; Essex v. Day, 52 Conn.'484; Story v. Campbell, 94 N. E. 982; Keister v. Myers, 115' Ind. 312; 4 Wig. on Evi., Sec. 2416; 1 Story’s Eq. 168;. Pom. Eq., Secs. 847-870 and 1376. Counsel discuss the evidence and conclude that it established both aspects of the complainant’s case.
    Hill, Hill & Whiting, for appellee.
    If the clause was inserted intentionally, the court of equity cannot reform it under bill alleging mutual mistake. — Gamp-bell v. Hatchett, 55 Ala. 551; Smith v. Allen, 102 Ala. 406; Bisham’s Eq., Sec. 469; Storey’s Eq. 157. There-can be no fraud without some affirmative word or act where parties are dealing at arm’s length with each other. — Watts v. Burnett, 56 Ala. 340; Goetter v. Pickett* 
      1 Ala. 387; Pac. G. Go. v. Anglin, 82 Ala. 492; Cannon v. Lindsey, 85 Ala. 202; Jones v. C. 8. & ilf. R. R. Go., 90 Ala. 380. As to tbe burden of proof, and tbe character of evidence required, see Gmlmartin v. Urquhart, 82 Ala. 571; Kurtzler v. Stevens, 119 Ala. 333; Rough v. Smith, 132 Ala, 204. Counsel discuss tbe evidence and conclude that tbe complainant failed to establish either aspect of tbe till.
   ANDERSON, J.

Tbe original bill sought a reformation of the contract of sale because of a mutual mistake, while tbe amendment is based upon fraud upon tbe part of tbe respondent and mistake on tbe part of tbe complainant. It cannot be seriously contended that there was a mutual mistake, as tbe clause of tbe contract sought to be reformed was inserted by Tillis and for the very purpose of making tbe sale cover everything in the park except what was owned by tbe street railway company. It is questionable whether or not Tillis intended to buy all property in tbe Park, all property owned by tbe amusement company, or only tbe property inventoried by a list furnished him, and to which be fixed a bidding price per item, and tbe total almost equaling tbe consideration of tbe contract in question when the negotiations were going on, yet it is clear that he intended tbe contract to be as it is. But, be this as it may, the proof puts the parties upon an equal footing, no disability due to a lack of education or intelligence, no confidential relations between them, and whatever may have been tbe motive or intention of Tillis in having the clause inserted, there is nothing to indicate that any fraud, misrepresentation, or deceit was practiced by him on Greil, whereby the said Greil was induced to execute said contract. It is true that Mr. Pomeroy in his excellent work on E'q-' ity Jurisprudence (Vol. 2, § 856) criticises, as being-too narrow, the rule that, when a mistake is the result of a complaining party’s own negligence, he will never be relieved. And our own court, in the case of Kinney v. Ensminger, 87 Ala. 340, 6 South. 72, is inclined to agree with this eminent writer that the rule is too narrow, and holds that it is not every negligence that will operate to bar relief, yet holds that, while courts will so act in granting relief, they will do so with great caution, so as to not unduly encourage the want of ordinary prudence on the part of persons signing important papers in making examination or inquiry as to their contents — citing Watts v. Burnett, 56 Ala. 340. “And generally an unexplained signing, without excuse for neglecting to read, or to make inquiry, and without any fraud, deceit, or misrepresentation being practiced on the maker or grantor by which he was induced to execute the pager (italics supplied), is not ground for relief, or defense to an action on this paper.”—Cannon v. Lindsey, 85 Ala. 198, 3 South. 676, 7 Am. St. Rep. 38; Dawson v. Burrus, 73 Ala. 111; Pac. Co. v. Anglin, 82 Ala. 492, 1 South. 852; Burroughs v. Pac. Co., 81 Ala. 255, 1 South. 212; Beck v. Houppert, 104 Ala. 503, 16 South. 522, 53 Am. St. Rep. 77; Upton v. Triblicock, 91 U. S. 45, 23 L. Ed. 203. The parties were dealing at arm’s length. No disability and no fraud, misrepresentation, or deception was practiced on Greil, whereby he was induced to sign the contract, either by Tillis or the draftsman. On the other hand, he was furnished with a copy of same some time before the signing, and practically admitted that he read it over, only claiming that he did not read it very thoroughly. Again, there was proof indicating that he knew the clause in question Avas in the contract when he signed the same, as he reserved or orally excepted some geese and flowers. If be sold as per tbe inventory, there was no need to except tbe geese and flowers, or, if be sold only wbat tbe amusement company then owned, it is singular be did not except tbe other things ivhen excepting tbe geese and flowers. Of course, if Greil knew tbe clause was in there, be is not entitled to relief, and, if be did not know it was there, it was bis own fault, and courts should be reluctant to disturb solemn contracts, when neither party was induced to sign same through tbe fraud, misrepresentation, or deceit of tbe other, both parties standing upon an equal footing, simply because one party, who admits that be bad an opportunity to do so, failed to read it or who read it, but did not do so thoroughly.

Our court in dealing with tbe reformation of contracts has laid down and followed a very stringent rule as to tbe nature and weight of tbe proof essential to entitle tbe complaining party to relief. “The burden in such cases is always on the complainant to show by evidence that is clear, exact, convincing, and satisfactory that tbe written contract does not express tbe true agreement between tbe parties.” “If tbe proof is uncertain in any material respect, it will be held insufficient, and, while the courts may feel that a great wrong has been done, they can grant no relief by reason of uncertainty.”—Hough v. Smith, 132 Ala. 204, 31 South. 500.

We are of tbe opinion that tbe city, court properly concluded that the complainant’s proof did not entitle him to tbe relief sought, and tbe judgment is affirmed.

Affirmed.

Dowdell, C. J., and Simpson and Mayfield, JJ„ concur.  