Whether a settlement has been had between the defendant and Morgan and Roby does not appear, but no question is raised that all the parties necessary for the complete determination of the controversy are not before the court.
The plaintiff insists, and the referee found, that the rights of the litigants are to be determined by the italicized paragraph in the contract of February 4, 1874, and the defendant’s counsel concedes that, if this contention is sound, the judgment' is right and should be affirmed. But the defendant alleges in his answer that the contract of February 4, 1874, “does not set forth and express the true meaning of the parties as to, and of, and concerning, the actual agreement made between said parties, and pursuant to which the said paper writing was drawn, and purports to set forth that in and by said agreement it was expressly agreed and provided, by and between said parties, that whenever, and as soon as the said lands and premises in said contract referred to should have been sold, as therein contemplated, the said Smith, from his proportion of the purchase money on said sale, should first have refunded to him, and be reimbursed for the whole amount he should have paid on account *464of the purchase money of said lands and other improvements and expenses on account thereof, with interest thereon, at and after the rate of 8 per cent per annum,- computed and compounded annually, and that whatever surplus should remain over and above that, if any, should be divided equally between said Helmer and Smith, and that, in arriving at the result as to whether there' was a profit or loss, and the amount thereof, interest upon the advances and payments made by said Smith, should be computed annually and compounded at the rate of eight per cent per annum, and should be so computed in the same manner as provided for in the said contract between said Morgan and Roby, except that the rate of interest should be 8 per cent per annum, instead of 10 per cent, and be computed annually instead of semi-annually.”
It is further alleged in the answer that the provision in respect to interest at the rate of eight per cent, to he compounded annually, was omitted from the written contract because Joseph W. Helmer stated to the defendant that such a provision would make the contract usurious and voi’d, but that the oral agreement in that respect would be performed by him; and the defendant, by his answer, asked that the contract be reformed by the insertion of the omitted provision, and that the accounting be had pursuant to the contract as so reformed.
The referee found as a fact:
“ Ninth. That prior to and' on the day of the execution, and delivery of the agreement hereinbefore described between Joseph W. Helmer and E. Ashley Smith, it was understood and agreed between said Helmer and said Smith, that said Smith was to be allowed and paid interest on his payments and advances at the rate of eight per cent per annum, compounded annually, blit by a mistake of law the said rate and the method of compounding were not expressed in the said agreement, it having at said time been represented to said Smith by said Helmer, and believed by both said Smith and said Helmer, that to express the interest reserved at eight per cent, compounded annually, would render said agreement usurious, and that it was best to trust said Helmer to pay the eight per cent, compounded annually.”
As a conclusion of law the referee found ■:
“ Fwsi. That the mutual mistake in the contract hereinbefore . *465referred to between. Joseph W. Helmer and E. Ashley Smith being-a mistake of law, the defendant is not entitled to have the same: reformed.”
The learned counsel for the respondent insists that the ninth finding of fact is not sustained by the evidence within the rule applicable: to actions for'the reformation of contracts. It has long been the: settled rule that contracts will not be reformed unless it is established by evidence, clear and convincing, that the instrument does not express the contract actually entered into between the parties. (The Allison Brothers Co. v. Allison, 144 N. Y. 21; Southard v. Curley, 134 id. 148, and cases cited.) Many of the' authorities hold that the existence of a mutual mistake must be demonstrated beyond a reasonable doubt. In the case at bar the contract had existed for twenty years without it having been asserted that it did not express the intent of the parties thereto. Large sums of money had been disbursed and received under it, and, so far as the record discloses, no claim had ever been made until shortly before this action was begun that the defendant was entitled to eight per cent interest, to be compounded annually. It seems improbable that it should have been agreed that the defendant was to have eight per cent interest, to be compounded annually, without deducting from the sums advanced the sums received from the sale of the lands ; but such is the claim. The d ef endant testified positively that it was agreed that he should receive eight per cent interest, to be compounded annually, on all sums which he should advance under the contract. The other party to the contract testified as positively that there was no such agreement, and in this he was sustained by the written con-. tract entered" into, under seal, twenty years before, the correctness of which had not been challenged in the meantime. • Thus the record stands, oath against oath, by the parties to the contract. The plaintiff’s witness had long since parted with all his interest in the contract, and besides, as before stated, his testimony is corroborated by the written contract of twenty years’ standing. Contracts solemnly entered into, which have existed' and been acted on, unchallenged, for years, are not to be changed by inserting important provisions, and especially, as against an assignee of one of the parties, simply upon the oath of an interested party, when his testimony is denied *466by the testimony of the other party to the contract, unless there are circumstances which substantially demonstrate the truth of the evidence of the party who testifies to the existence of a mutual mistake:
I think that the evidence in this case does not sustain the finding that it was mutually agreed that the defendant was to receive eight per cent per annum, compounded annually, on all sums which he should advance under the contract. It is said in the opinion of the referee^ and in the points of the appellant’s counsel, that, in 1876, Helmer and Smith accounted, and that eight per cent interest was charged on the advances made by Smith. No evidence of such an accounting is found in the record, and the opinion of the referee cannot be resorted to for facts to sustain or reverse the judgment.
Again, the account set up in the defendant’s answer-begins with this item, “ 1873, Dec. 4. On account of purchase money,' $5,600,” and is continued down to the time when the land was sold,: and the referee’s statement of the account begins with the same item, but is dated December 4, 1876, evidently a printer’s error in the year, as the year following is 1874.
The learned referee allowed the defendant’s account, as claimed by him, with few trivial exceptions, and allowed him interest at the rate of seven per cent from the beginning to the end, not reducing the rate to six per cent on the 1st day of January, 1880, and did not charge the defendant with interest on the sums which he had received from the sale of land. To this the plaintiff took no exception. Under the rule laid down by the courts of this State for the reformation of contracts, we think the record discloses, no error of which the defendant can legally complain.
It is urged by the appellant’s counsel that the plaintiff, not having excepted to the ninth finding of fact, it cannot be reviewed on this appeal. All the rulings upon questions of law were in favor of the plaintiff, .and there is no provision in the Code which permits a party in whose favor all the issues of law are decided to except to the report of a - referee. An exception by the unsuccessful party to rulings of law brings before the court the validity of the findings of fact, and there is no provision authorizing either party to except to a finding of fact unless there is no evidence tending to sustain it, in which case it becomes a ruling upon a question of law. (Code *467Civ. Proc. §§ 992, 993, 994.) Upon such a record the findings of fact may be reviewed.
The judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.