STEVENS, V. C.
Bill between Arthur W. Moore and the Brennon Distributing Corporation. Decree for complainant.
Herbert W. Knight, of Newark, for complainant.
Arthur T. Vanderbilt, of Newark, for defendant.
STEVENS, V. C. I think that the contract whose reformation is sought was not drawn in accordance with the understanding of the parties.
The complainant desired to hire for his theater a motion picture called the Fall of the Romanoffs. He went with Mrs. Webbe, a friend of his, engaged in the same business, to see Mr. Berman, the agent of defendant, the owner of the film. It was agreed that the picture should be exhibited by the complainant for five days at his theater and by Mrs. Webbe for two weeks at her theater. The question of a deposit came up. Berman said he wanted 25 per cent, in cash. Complainant demurred, saying that he would not put up cash, and Mrs. Webbe said she was. unable to pay cash. Complainant said he would give a £100 British treasury bond as security. Mr. Berman replied, "Why not let the deposit go for the two." Complainant assented. Then Mr. Beir, a salesman of the defendant, was called in to draw the contract. He drew it in such a way as to obligate complainant for Mrs. Webbe, not only to the extent of the deposit, but for the whole sum she was to pay ($1,500) for the two weeks' use. When the draft was prepared and was shown to Mrs. Webbe and to complainant they objected, on the ground that neither should stand bound for the other except to the extent of the deposit.
Complainant testifies as follows:
"Mr. Berman said that the sole object of this was so that when they sent it in to their office the parties there would be able to identify the bond as covering the two contracts."
Mrs. Webbe testifies:
"I said, 'Why, Mr. Moore's name is on my contract,' and Mr. Berman replied, 'That is done to show my superiors what the bond covors; that the bond covers the two contracts.'"
Mr. Berman is dead, but Mr. Beir, the scrivener, called as its witness by defendant, testifies:
"Q. Did you hear any discussion at the time the contracts were signed that Mr. Moore was not to be liable on Mrs. Webb's contract? A. Why, there was objection raised by Mr. Moore under the conditions he was signing those contracts, and, as far as the explanation given to him, we told him it was covering the deposit and nothing else. Q. By the Court: Well. then do I understand that the joint liability, according to the understanding of all the parties, was to extend only to the deposit? A. To my knowledge it was, sir."
Now this is all the evidence, and it seems to me that it shows a very plain case of mistake by the scrivener. A perusal of his evidence will indicate that his failure to express in words what had been agreed upon arose out of the fact that he was without qualification for the task. In Freichnecht v. Meyer, 39 N.J.Eq. 560, Justice Dixon says:
"Constantly courts of equity reform the most solemn instruments upon the ground, not that the parties have inserted words which they meant to exclude, or omitted words which they meant to insert, but that the language does not express their agreement; that they did not put upon the terms employed the same construction as the law does; in short, that there was a mutual mistake of law, using the word 'law' in its broader sense."
The case is one for the application of this doctrine, and the complainant is entitled to relief.