
    Mulby v. Dunham et al.
    (Decided November 22, 1927.)
    
      Mr. B. E. Sapp and Mr. R. L. Carr, for plaintiff.
    
      Mr. Robert J. Grossman and Mr. F. O. Levering, for defendants. ■
   Houck, J.

This case was submitted here on the first cause of action of the amended petition, the answer to same, and the evidence, which consisted of the supersedeas bond in question, the docket and journal entries in the case, and the oral testimony of the clerk of courts, F. G. Sparks, and of counsel for the plaintiff, B. E. Sapp.

The relief sought by this suit, in the first cause of action, is to reform a certain supersedeas bond executed by defendant J. L. Dunham, as principal, and the other defendants herein, as sureties.

The prayer of plaintiff’s petition in this cause of action is:

“Plaintiff therefore requests the court upon the hearing of this cause of action to order said bond corrected and reformed to express the true intention of the parties.”

The relief sought is based on a claimed mistake, in that it was intended that an undertaking in error was being executed, and not a supersedeas bond.

It is conceded that no proceeding in error was prosecuted until two or three weeks after the filing of the supersedeas bond.

The undisputed facts are: That a supersedeas blank bond was requested by one of the counsel of Dunham of Clerk of Courts Sparks, and that counsel and the clerk filled the blank spaces; that counsel took the bond, and it was thereafter returned, either by counsel or Dunham, to the clerk, duly signed by Dunham, the principal, and the other defendants, as sureties.

No evidence was offered to show that the signing of said bond by defendants, or either of them, was done by mistake or inadvertence, or that it was done to defraud or wrong plaintiff.

Therefore the presumption in law is that they signed the paper in question for the uses and purposes set forth and stated therein, and for no other, and in the absence of proof to the contrary they are not legally chargeable with mistake or fraud.

There is no evidence that either of the defendants intended to sign or execute any other kind of bond or obligation than the one now in suit.

“When no question of fraud, bad faith, or inequitable conduct is involved, and the right to reform an instrument is based solely on a mistake, it is necessary that the mistake be mutual, and that both parties understood the contract as the complaint or petition alleges it ought to have been, and as in fact it was, except for the mistake.” 23 Ruling Case Law, Section 20, p. 327.

The general rule seems to be that, in an action to reform an instrument for mistake, the presumption is that the contract or written instrument, as executed, contains the agreement of the parties, and to overcome this presumption the mistake must be proved by satisfactory evidence.

While a court of equity is clothed with broad powers, yet, in the absence of proof of a clear and substantial nature, it is not authorized to reform a contract or bond, unless it is made to appear that a mistake has occurred, or fraud has intervened; and equity will not make a contract for the parties, where they failed to do so themselves, except under the conditions and circumstances thus indicated.

“No reformation of an instrument can be made that does not conform to the intention of both parties; the court cannot by reformation make a new contract.” Stewart v. Gordon, 60 Ohio St., 170, 53 N. E., 797.
“The only grounds for reforming an instrument are those of fraud or mutual mistake.” Baltimore & Ohio Rd. Co. v. Bing, 89 Ohio St., 92, 105 N. E., 142.
“No principle is better settled, at the present day, than that a surety can not be further bound than by the terms of his undertaking. These terms cannot be changed without his consent.” Bank of Steubenville v. Leavitt & Carrol, Admrs., 5 Ohio, 207, 214.

Under the facts and the law, we are of the unanimous opinion that the plaintiff has failed in his proof to sustain the allegations of his petition, and that judgment must be entered for the defendants.

Judgment for defendants; petition dismissed.

Shields and Lemert, JJ., concur.  