I dissent. The statement of facts, aside from the reported decision of the trial court, consists of twenty-five pages. Nowhere in that statement is there any evidence to the effect that no consideration passed "to Nesbit for a relinquishment of the easement."
The rule relative to reformation of contracts is that there must have been a MUTUAL mistake made at the time the contract was entered into — in this case, the deed. In other words, it must be shown by clear, cogent, and convincing evidence thatBOTH PARTIES to the contract made a mistake in drafting the deed. There is not one word of testimony which shows that either Mr. Nesbit or Mr. Pitts made any mistake when the deed was written and executed. On the contrary, the evidence, reported on page twenty-three of the statement of facts, shows that Mr. Pitts testified:
"Q. Let me ask you this, was the deed delivered to you on October 23rd 1945, was it the deed you and Mr. Nesbit agreed on? A. Yes. Q. Is this the Deed. [Interpolation by counsel.] A. Yes."
The question was asked by counsel for respondent, and in propounding that question he waived the provision of Rem. Rev. Stat., § 1211. The bar of the statute may be waived. Carter v.Curlew Creamery Co., 16 Wn.2d 476, 134 P.2d 66; and,Miller v. O'Brien, 17 Wn.2d 753, 137 P.2d 525. By asking the question of appellant, respondent made appellant his own witness and is bound by the testimony.
The case should be decided upon the evidence which appears in the record and not upon conjecture and speculation. The majority in fact enforced the contract relative *Page 546 to the sale instead of reforming a deed. As I understand the decision, all deeds hereafter executed must conform to any and all provisions of a contract for a deed, regardless of the evidence produced.
SCHWELLENBACH, J., concurs with SIMPSON, J.