Speer v. Kittle Manufacturing Co.

This is an action in equity to reform a contract upon the ground of mutual mistake, and also for an accounting between the parties under the contract as reformed. Findings and judgment were made and entered, reforming the contract, and an accounting was had between the parties. Judgment was entered in favor of the plaintiff in the sum of $6,934.80, together with interest and costs of suit. The defendant appeals from the whole of said judgment.

It is contended by the appellant that the evidence is insufficient to sustain a judgment of reformation of the contract in this: That in such actions to justify a reformation, the evidence must be clear and positive, leaving no room for doubt. Among other cases the appellant cites those of Burt v. Los Angeles O. G. Assn., 175 Cal. 668 [ 166 Pac. 993 ]; Hochstein v. Berghauser, 123 Cal. 681 [ 56 Pac. 547 ] ; Luning v. Brooks, 1 Cal. Unrep. 29 ; Home & Farm Co. v. Freitas, 153 Cal. 680 [ 96 Pac. 308 ]; which are to the effect that the proof in actions for reformation of a written instrument must be clear and positive. While this is undoubtedly the rule, yet as said in Capelli v. Dondero, 123 Cal. 324 , 328 [ 55 Pac. 1057 ], in an action to reform a deed: “The principal question raised by appellant is that the evidence does not support the findings. It is true, as appellant contends, that evidence warranting the reformation of a deed must be clear and convincing, and not loose, equivocal, or contradictory, leaving the mistake open to doubt; and unless the proofs come up to this standard, equity will withhold

Under the foregoing rule it is our duty to ascertain if the findings of the trial court granting reformation of the contract, are sustained by the evidence. If so, then we cannot weigh the evidence to ascertain its preponderance. (Capelli v. Dondero, supra.)

The contract upon which the action is based and which was reformed by the decree of the trial court, in its original form provided that the plaintiff was to act as the agent of the defendant, who was a manufacturer of orchard heaters, to sell said heaters in certain territory. According to the contract, the plaintiff was merely the selling agent, and it was sought to reform the contract to provide that he was the sole and exclusive agent in said territory for such sales, and entitled to commissions on all sales made in that territory, no matter by whom they were made. It was in these particulars that the court reformed the contract. The evidence upon which the reformation was granted, and which we deem sufficient to support the findings of the court, is as follows: J. W. Laycock was at the time of the execution of the original sales contract the sales manager for the appellant and executed said contract on its behalf. In answer to the questions he said: “As I recall, Mr. Speer was to have the selling of the Kittle heaters in this particular territory covered by the period of time mentioned in the contract, and was to be the exclusive representative in that territory; that he (Speer) was to make the sales and make the demonstrations and attend to all sales work within the territory.” The witness further testified that it was his understanding that all inquiries coming to the defendant were to be turned over to Mr. Speer; that it was his under

There is other evidence in the record to support the finding that the plaintiff was appointed the sole and exclusive agent for the sale of the heaters, but we think the foregoing is a sufficient statement of the evidence to support a finding of mutual mistake, and to justify the finding that plaintiff had an exclusive contract for the sale of the heaters in the territory covered by the contract.

The court also reformed the contract to allow the plaintiff a commission on all heaters sold in the territory, no matter by whom the sales were made. It is claimed that this

It is next claimed that the court erred in settlement of the account between the parties. Appellant claims credits to the amount of $2,118.60 were not allowed by the court. During the examination of the witness J. P. Meehan, the secretary of the defendant corporation, counsel for plaintiff, called for two cheeks for $500 each. These were produced by the witness, together with a check for $250. Certain memoranda were also produced, from which it appeared that at least the $250 checks were noted as advance commissions on orchard heaters. The slips were offered in evidence by counsel for the plaintiff, and were objected to by counsel for appellant, and the court sustained the objection. The three checks were never offered in evidence, nor were the memoranda again referred to. Whether these checks were payments to plaintiff on account, or payments on commissions from sales made by other parties, does not appear in the record. In any event they are not a part of the evidence and, having been excluded therefrom by the acts of the appellants, they cannot complain. Counsel for the appellants offered in evidence a check for $316.65 at the same time he referred to four other checks. When the check for $316.65 was offered, it was objected to by respondent as not responsive to the issue. After considerable discussion between the court, counsel and the witness, the latter said that, “those checks do not represent payment of commissions to Speer”. This statement was stricken out on motion of respondent. No ruling was made on the admissibility of the check, and it does not appear whether it should be charged to plaintiff on account of commissions, or not. There is still another check of $106.80. This check is referred to in plaintiff's exhibit No. 7 introduced in evi

The judgment is affirmed.

Thompson (R. L.), J,, and Plummer, Acting P. J., concurred.