Burton v. Curtis

HOUSER, J.

The main purpose of the action in controversy was to recover damages for an alleged breach of contract. In. order to establish that a breach of the contract had occurred, it was first necessary that the contract as signed by the parties thereto be reformed. It appears that the plaintiff, who was the owner of certain personal property consisting of the furniture and furnishings of an apartment house, sold the same to defendant, and that, according to the final written agreement between the parties, whatever sum in excess of $16,500

“net”

was received by defendant on a resale by her of the property was to be placed to the credit of plaintiff on account of an indebtedness of

[13]

$2,500 owing by plaintiff to defendant, which indebtedness was evidenced by a promissory note and trust deed. A part of such indebtedness arose from the claim of defendant that the sum of $500 thereof represented the cost of assigning from plaintiff to defendant a lease of the real property upon which stood the apartment house in which the furniture and furnishings sold by plaintiff to defendant were located.

In accordance with the allegations contained in the complaint, on the trial of the action plaintiff attempted to prove that, notwithstanding the language of the contract as finally written, to wit: in effect that whatever sum in excess of $16,500

net

for which the property might be sold was to belong to plaintiff, the intention of the parties was that any sum in excess of $16,500 (omitting the word “net”) which the property might bring on a resale was to become the property of plaintiff.

Section 3399 of the Civil Code provides that: “When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, ...”

Originally the proposed contract between the parties, which plaintiff had read, or which had been read to her, and with which she was thoroughly familiar, did not contain the word “net” in connection with the resale price of the personal property. No claim is made by plaintiff that the interlineation of