
    Cassilly v. Cassilly.
    
      Release and transfer of prospective estate— Written contract read to and asse?ited to by one who cannot read — Cannot be set aside, when.
    
    1. A written instrument in the following terms :
    ‘ ‘ In consideration of five hundred dollars, ($500,) tome this day paid by Thomas Cassilly, I hereby release and give to him all the interest I have, or may ever have, in the estate of Francis Owens, deceased, whether said estate, or any part thereof passes, or may ever pass to me, by descent, bequest, gift, devise or otherwise. I further agree, in consideration of said five hundred dollars, not to contest the probate of the will of the late Francis Owens, dated February 25, 1890 ; and not to bring an action or to be a party to the same to set said will aside. her
    Margaret (X) Cassilly. • mark.
    Witnesses :
    Edw. A. Foy,
    Wm. F. Foy.
    Dated July 26, 1890.”
    embodies a contract which cannot be contradicted by parol evidence.
    2. Where mother and son enter into a written! contract, which is correctly read to her before its execution, and she then voluntarily executes it, she is bound by its terms until it is set aside by a proceeding brought for that purpose. The facts, if satisfactorily established, that she could not read writing, and on account of the confidence reposed by her in her son, did not carefully weigh, so as to comprehend the terms of the instrument, when it was read to her, afford no ground to treat it as a nullity or to permit her to contradict its terms by parol evidence when interposed by the son as a defense to an action at law brought by her against him.
    (Decided December 17, 1897.)
    Error to the Superior Court of Cincinnati.
    This action was brought in the Superior Court of Cincinnati, by defendant in error against plaintiff in error, the plaintiff there recovered judgment which was affirmed in general term, whereupon the cause was brought here to reverse the judgment in general term. The facts will be stated in the opinion of the court.
    
      Outcalt & Granger, for plaintiff in error.
    We contend that only upon two theories could parol evidence have been properly admitted, either because the written document in question was, in legal effect, merely a receipt for money, or, if it was more than that, because it had been executed through mistake or fraud. For, if it is the undoubted law, as it seems to be, that a receipt given for money or property may be varied by parol evidence, it is likewise thoroughly established that a written agreement of release or settlement, purporting to be full and complete in its terms and containing no ambiguity, can not be varied by such evidence, except where it is shown that the instrument was executed under a mistake or was procured by fraud.
    If any authorities can be cited to maintain the doctrine that where a written instrument is both a receipt and an agreement the two parts may be separated and parol evidence admitted to vary the words of the part which is the receipt, it will still appear that the Supreme Court of Ohio has repudiated such doctrine, and we need not go outside to discuss it. Stone v. Vance, 6 Ohio, 246; Baird v. Hueston, 10 Ohio St., 430; Fitz v. Corney, 118 Mass., 100; Frost v. Brigham, 139 Mass., 43; Doyles v. Dickson, 94 Mass., 576; Fowler v. Richardson, 32 Ill. App., 152; Tarbell v. Elevator Co., 47 N. W. Rep., 152; Taylor v. Davis, 52 N. W. Rep., 756; Transportation Co. v. Miller, 59 Fed. Rep., 483.
    
      As to the admissibility of the aforesaid evidence on the theory that the written release and agreement was executed under a mistake or through fraud, our first proposition is, that the case presented by the pleadings precluded it. Nothing was alleged by this plaintiff, in her petition or reply, that would entitle her to attack this paper on any such ground.
    Even in suits instituted for the express purpose of impeaching a transaction on the ground of fraud, it is required, as a rule of pleading, that the nature of the case should be distinctly and accurately stated ; a mere general charge of fraud, without, alleging specific facts, is not sufficient to sustain the petition; it must be shown in what the fraud consisted and how it was effected ; the facts constituting the fraud must be stated. Am. & Eng. Ency. of Law, Vol. 8, page 653; Pendleton v. Galloway, 9 Ohio, 178; McMurray v. Gifford, 5 How., Pr. 14; Bliss’ Code Pleading, section 211.
    And in actions brought for the express purpose of reforming- a written instrument on the ground of mistake, the court will not consider whether the relief should be granted, without the requisite allegations in the bill to bring the parties within the rule of equitable relief under this head of equity jurisdiction. White v. Denman, 1 Ohio St., 110; Kinkead’s Code Pleading, sections 607, 620, 825 and 1095.
    A fortiori, relief on either of the above mentioned grounds would not be granted and could not be regarded as a part of an action to enforce a verbal contract, when such verbal contract is, on the trial, shown to have been merged into a written contract, and no fraud or mistake in the written contract is in the slightest manner set up in the pleadings. Whittaker’s Ohio Code Pleading’, pag’e 115; Bates’ Pl. & Pr., Vol. II, pp. 862 et seq; Pomeroy on Remedies, sections 664, 687; Jenkins v. Long, 19 Ind., 28; Parsons on Contracts, 8th Ed., Vol. II, page 833. Pratt v. Castle, 52 N. W. Rep., 52; Howard v. Thomas, 12 Ohio St., 201.
    It is for the court to decide whether the facts are sufficient to establish such a mistake as will justify the reformation of a written instrument. Shettiger v. Hopple, 3 Grant (Pa.), 54.
    What is “mistake?” Am.- & Eng. Ency. of Law, Vol. XV. p. 625; Ligon v. Rogers, 12 Geo., 281.
    Chancery will not reform a written contract by the insertion of a stipulation which was designedly omitted from the writing and trusted to the defendant's honor. Betts v. Gunn, 31 Ala., 219.
    Equity will not interfere where the instrument is such as the parties design it to be. If they voluntarily chose to express themselves in the lang’uage of the deed, they must be bound by it. Mackelderry v. Shipley, 56 Am. Dec., 703.
    Nor where the facts could have been obtained by the exercise of due diligence. McDaniels v. Bank, 29 Vt., 230.
    To entitle a party to relief for mistake, he must have been free from negligence. Bonney v. Stoughton, 122 Ill., 536; Robertson v. Smith, 11 Texas, 211; Byers v. Chapin, 28 Ohio St., Androscoggin Bank v. Kimbel, 10 Cush., 373.
    As a rule of evidence, this court has declared that as against a claim, of mistake, ‘ ‘ the presumption is so strongly in favor of the instrument that nothing short of a clear- and convincing statement of facts showing the mistake will warrant the court to interfere and. reform the instrument. Potter v. Potter, 27 Ohio St., 84.
    There is a presumption in favor of the due execution of solemn instruments. Greenleaf on Evidence, Vol. I, section 38a.
    The courts will not grant relief when the means of knowledge were equal. Belt v. Mehan, 2 Cal., 159; Van Voorhis v. Rea Bros., 153 Pa. St., 19.
    The simple fact of making’ a representation which turns out not to be true, unconnected Vith fraudulent desig’ns, is not sufficient to constitute fraud ; for fraud means an intention to deceive, and if there was no such intention, if the party honestly stated his opinion, believing in it, he commits no deceit, even if the representation proves entirely untrue. Lord v. Goddard, 13 How. (U. S.), 198, 211; Young v. Covell, 8 Johns, 23 ; Parmlee v. Adolph, 28 Ohio St., 10; Kimball v. Insurance Co., 9 Allen, 540; Armstrong v. Karshner, 47 Ohio St., 276; Burt v. Bowles, 69 Ind., 1; Gallager v. Brunel, 6 Cowan, 346; Fisher v. N. Y. C. P, 18 Wend., 608; Long v. Woodman, 58 Me., 49; Fenwick v. Grimes, 5 Cranch C. C., 439; Sawyer v. Prickett, 19 Wall., 146; In Com. v. Brennerman, 1 Rawle, 314; Pomeroy on Contracts, section 255, page 340 ; Thurston v. Ludwig, 6 Ohio St., 4; Parsons on Contracts, 8th Ed., Vol. II, star pp. 548, 549; Greenleaf on Evidence, Vol. I, section 87.
    When an instrument by mutual mistake of the parties fails to carry out their intention, it may be reformed in a proper proceeding for that purpose. Globe Ins. Co. v. Boyle, 21 Ohio St., 119; Railroad Co. v. Steinfeld, 42 Ohio St., 449.
    It is not the law that a party is conclusively and necessarily relieved from his written contract merely because he did not understand what he was signing or did. not intend to do what the writing shows he. did. If this were enough, then what becomes of the presumptions of law which are indulged in to sustain the integrity of written agreements ; what contract could not be easily repudiated under such a charge? Pomeroy on Contracts, pp. 332, 333; Lyman v. U. S. Ins. Co., 17 Johns. (N. Y.), 373; Tesson v. Ins. Co., 40 Mo., 33; Diman v. Railroad Co., 5 R. I., 130; Renshaw v. Lefferman, 51 Md., 277.
    The effect of the charge was that a representation which turns out to be false is per se fraud, as a matter of law. This is contrary to the doctrine established in Armstrong v. Karshner, 47 Ohio St., 276, that a misrepresentation, to constitute fraud, must have been made “fraudulently, for the purpose of deceiving.” If it was honestly made, and not recklessly, or if the plaintiff was negligent in relying upon it — if the circumstances were such as that she had no right to rely upon it, as, for instance, if she knew, as she said she knew,' that Mrs. Goddard would not settle for $500, then there was no fraud in the statement described by the court. Ins. Co. v. Reed, 33 Ohio St., 283; McDonald v. Trafton, 15 Me., 225.
    Even if the theory of the special charges was correct, that for fraud the written agreement could be ignored and a recovery be had on the previous verbal agreement, this could not be, unless the plaintiff first return the consideration which she received under the written agreement; she coidd not rescind in pa/rt. Snow v. Alley, 11 N. E. Rep., 764; Barrie v. Earle, 8 N. E. Rep., 639; Merrill v. Wilson, 33 N. W. Rep., 716; Byard v. Holmes. 33 N. J. L., 119.
    
      Keeping the $500, her only remedy was to sue for damages, in an action for deceit.. Gould v. Bank, 99 N. Y., 333
    The cases reported in this country upon this doctrine, showing variously that the required amount of proof necessary to reform and enforce an agreement on the ground of mistake, must be “ such as leaves no doubt in the mind of the court;” that it must be “clear and overwhelming;” that it must be “clear, precise, indubitable;” that .it must be “clear and satisfactory;” that it must be “the strongest and most convincing;” that “it must be provenas satisfactorily as if admitted;" that “a mere preponderance is not sufficient” — are collected in the marginal notes of The American & English Encyclopedia of Law, Vol. XV, pp. 650 and 653.
    But the doctrine is also well settled in Ohio: the proof must be clear and satisfactory. Davenport v. Scovil, 6 Ohio St., 459; Stine v. Sherk, 1. W. & S., 195; Stockbridge Co. v. Hudson Co., 102 Mass., 54.
    
      Charles W. Baker, for defendant in error.
    To say because Cassilly produced a pretended receipt that had his mother’s mark affixed to it, that this prevented the introduction of proof showing what the agreement was between himself and his mother, of showing that Cassilly did not do as he agreed, that this very receipt was a violation of his agreement, and was fraudulently obtained, is too entirely absurd to argue. Merrick v. Boury, 4 Ohio St., 60; Fleig v. Sleet, 43 Ohio St., 53; Mullen v. Old Colony R. R. Co., 127 Mass., 86; Railway Co v. Phillips et al., 66 Fed. Rep., 35; Sobieski v. Ry. Co., 41 Minn., 169.
    
      It is urged that the action in this case should have been for deceit, and not upon contract. How can this be ? The cause of action is stated in the petition.
    Mrs. Cassilly was entitled to retain the $500 and credit it upon the $2,000 that was due her the moment Cassilly paid that sum to Mrs. Goddard. Railroad v. Steinfeld, 42 Ohio St., 449.
    The only action that could have been brought, was upon contract as set forth in the petition.
    Asa corollary to this, the suggestion of counsel is, that the plaintiff in this cause ought to have brought a separate action in a court of equity to reform or change or cancel the alleged instrument to which she attached her mark, upon the ground that it was fraudulent, and that she could not maintain this action upon contract until after there had been an adjudication upon this question in a court of equity.
    Courts of law and courts of equity in Ohio administer justice with the same hand. In our practice one is not bound to go into a court of equity to have a receipt or contract declared fraudulent as a preliminary step to an action at law for what is due him, and of which it is sought to deprive him by the fraudulent instrument.
    Besides, that was waived by the defendant going to trial upon the issues as pleaded. Hollins v. Iron Co., 150 U. S., 371; Tyler v. Savage, 143 U. S., 79.
    It has been repeatedly held that an appellate court will not entertain an objection to the form of the action when the objection is not interposed in ample time in the trial court.
    It will be presumed that the parties assented to the theory that the remedy adopted was the proper one, and they will be held by that theory on appeal 
      Brown v. Lawler, 21 Minn., 327; Weaver v. Kintzley, 58 Iowa, 191; Town of Mentz v. Cook, 108 N. Y., 504; Cement Co. v. Railroad, 29 N. E., 121; Creely v. Brick Company, 103 Mass., 514.
   Bradbury, J.

The plaintiff in error, Thomas Cassilly, is the son of the defendant in error. In the year 1890, her brother, Francis Owen, died in Cincinnati, Ohio, unmarried, leaving a will, by the terms of which her son, Thomas, plaintiff in error, was made the principal legatee. The testator left surviving him two sisters, the defendant in error, and Ellen Goddard, and possiby one brother ; however, as they had not heard from the latter for many years, he was supposed to be dead. These two sisters of the testator were not satisfied with the provisions of the will of their brother, and were considering the expediency of contesting its validity. Wishing to prevent this, the plaintiff in error sought a compromise with his mother, the defendant in error, and also with his aunt, Ellen Goddard. He first entered into a written contract of settlement with his mother, by the terms of which he paid her five hundred dollars in consideration among other tilings, that she would neither bring an action herself to contest the validity of the will, nor become a party to such action if brought by another. He and his mother subsequently disagreed respecting the amount, which, by the terms of the settlement, was to be paid to her ; he claiming that the amount was five hundred dollars, and she contending that she was to be paid whatever sum, her son should pay to her sister in case the two latter should come to a settlement. Afterwards her son and sister came to an agreement by which the latter was paid two thousand dollars. Thereupon the defendant in error brought an action to recover the difference between what had in fact been paid to her under the settlement with her ($500.00), and the sum paid to her sister under the settlement with the latter.

In her petition she averred that by the terms of the settlement between herself and her son, the latter was to pay to her whatever he should pay to her sister according- to the terms of the settlement had by him and the sister.

The defendant below, by answer, among other matters set in bar of the action that he and the plaintiff below, had come to an agreement by the terms of which he was to pay, and had paid her five hundred dollars, in full settlement of all rights she might have in the estate in question.

The action was founded on a contract by the terms of which Mrs. Cassilly had released to her son, defendant below, whatever interest she might have in the estate of her deceased brother. The son rested his defense upon the' same contract. Both ag-reed that she had released that interest to him; the amount to be paid to her by him in consideration of such release was the only matter in dispute between them.

When the cause came on for trial in the Superior Court, the son, defendant below, introduced in evidence, in support of his contention in this respect; the following’ written instrument:

‘ ‘In consideration of five hundred dollars ($500.00) to me this day paid by Thomas Cassilly, I hereby release and give to him all the interest I have or may ever have in the estate of Francis Owens, deceased, whether said estate or any part thereof, passes or may ever pass to me by descent, bequest, gift, devise or otherwise.
I further agree, in consideration of said five hundred dollars, not to contest the probate of the will of the late Francis Owens, dated February 25, 1890; and not to bring an action or to be a party to the same to set said will aside.
her
Margaret (X) Cassilly. mark.
Witnesses :
Edw. A. Foy,
Wm. F. Foy.
Dated July 26, 1890.”

While this instrument bears the form of a receipt, it nevertheless contains the terms of a valid contract entered into by and between Margaret Cassilly and her son Thomas. It recites the fact of payment, but in addition to that it states, also ; that in consideration of five hundred dollars, she releases to him whatever interest she might have in the estate of her brother, and that she agrees not to engag’e in any contest to set aside the will of that brother.

This instrument, in as far as it embodies the contract which the parties have made, cannot be contradicted or varied by parol evidence. It obligated him to her in the sum of five hundred dollars, neither more nor less, and until it should be set aside in equity, she could no more vary, by parol evidence, the obligation it imposed upon him, than he could, by that method, vary its terms as to what she had undertaken to do. Jackson v. Ely, 57 Ohio St., 450, decided contemporaneously with this cause.

After this paper had been given in evidence the plaintiff below, Mrs. Cassilly, was called as a witness, and, over the objection of plaintiff in error, defendant below, testified as follows:

“Direct examination by Mr. Baker :
£ £Q. Did your son, Thomas Cassilly, at your house, in the presence of his sister, tell you the morning that he came up there, when he would give you five hundred dollars to settle, no matter what he gave Mrs. Goddard?
“(Objected to by counsel for ■ defendant as repetition. Objection overruled ; to which counsel for defendant excepted.)
“A. He did. He told me that he would give me five hundred dollars, and give the same to Mrs. Goddard. I said Mrs. Goddard would not take five hundred dollars. Well, he said, if she don’t take five hundred dollars, she would get none, and to please me he would come up and take me to Hamilton if I would go.
£ £ Q. I want to know if he told you at that time, or you agreed' with him to take five Hundred dollars, no matter what Mrs. Goddard got ?
“(Objected to by counsel for defendant. Objection overruled.)
“A. He did.
“ Q. I want to know whether or not he told you that he would give you five hundred dollars, .no matter what he gave Mrs. Goddard ?
“(Objected to by counsel for defendant. Objection overruled; to which counsel for defendant excepted.)
“Q. I want to know whether or not Mr. Cassilly told you that he would give you five hundred dollars, no matter what he gave Mrs. Goddard, or did he agree to give you what he gave Mrs. Goddard?
“A. Yes, sir; what he would give one sister, he would give to the other, and no more. ”

The only effect this evidence could produce was to show that the written contract did not correctly express the agreement which the parties had made, that while it only imposed upon her son an obligation to pay her five hundred dollars, his real obligation was to pay her what he had paid her sister, which was two thousand dollars. Its admission was a violation of the settled rule of evidence, which prohibits the variation or contradiction of a written contract by parol evidence.

In support of the ruling which admitted this parol evidence:

Authorities are cited which hold that a party against whom a contract is thus introduced in an action, may introduce evidence to show that it had not been executed by him at all, or that he had been induced by some trick or devise to attach his signature to the paper, supposing it to be another and different document. The evidence however discloses nothing of that kind in the case before the court. The version given by Mrs. Cassilly, herself, while testifying to the transaction, affords no ground to suppose that the paper was not truthful^ read to her, or that it was not the one she had in fact signed, no fraud was practiced upon her in that respect. True, she could not write, and was dealing with her own son, in whom she says she placed great confidence, which it is quite natural that she should; and on that account may not have weighed the words of the writing when read to her with the caution and deliberation she would have exercised if she had been dealing with a stranger; nevertheless she freely and voluntarily executed the writing, after its contents had been correctly read to her. Whatever the rule may be respecting the introducing’ of evidence to show that a party has been trapped by a fraudulent device into executing a paper he did not intend to sign, it does not follow that such rule should also be applied to a case where a party executed a paper knowing what it was, but, by reason of confidence in the other party to it, did not carefully weigh the words of the instrument or fully understand their import. In the former case, the party defrauded ■might be permitted to show in any action or proceeding wherein the instrument became material that it was never executed by him, and therefore never had any legal operation, and should be treated as a nullity. The introduction of evidence to establish this state of facts would in no wise violate the rule which prohibits the contradiction, by parol, of the terms of a written instrument. Tn the latter case however, the instrument even if extremely improvident in its terms, yet having been knowingly and voluntarily executed, is not a nullity. If it should be conceded that the circumstances show that a court of equity ought to have set aside the con tract, if an action had been brought for that purpose by the party that had been overreached, nevertheless, until that shall be done, it remains binding on the parties and is within the protection of the rule of law that prohibits the admission of parol evidence to contradict its terms.

Judgment reversed.  