As between the parties to this action no such mutual mistake was shown as would have authorized a court of equity to reform the contract. The mistake, if there were one, rested with the-defendant and his own bookkeeper. There was no attempt on the part of the plaintiff to mislead or deceive the defendant. The contract in question was left with him for examination and execution. He directed his book-keeper to make an alteration in it. That the latter was chargeable with an omission in the performance
The defendant did not specify the questions of fact which he desired to submit, and his exception upon this point must be overruled. (Winchell v. Hicks, 18 N. Y. 558; Barner v. Perine, 12 id. 18; Graser v. Stillwagen, 25 id. 315; O'Neil v. James, 43 id. 84.)
The judgment should be affirmed.
Robinson, J., concurred.
In connection with what Judge Larremore has said, I have but to add that after the lease was returned to the plaintiff with the clause “'requiring fifteen days’ notice of non-payment" inserted by the defendant’s book-keeper, the plaintiff had a right to assume, no matter what may have been said before between him and the defendant, that that was what the defendant wanted, and it would be most unjust afterwards to allow the contract to be defeated by inserting within fifteen days after non-payment, when the plaintiff may not have given the notice within that time, under the belief that all that was required was that he should give the surety fifteen days’ notice of the demand.
The foregoing opinion was delivered June 4th, 1877, and on a motion for a reargument the following opinion was filed, January 7th, 1878.
Charles P. Daly, Chief Justice.—To bring himself within the rule adopted in Curley v. Tomlinson (5 Daly, 283) and Mount v. Mitchell (32 N. Y. 702), the defendant’s counsel claims that we have, by a misapprehension of the facts, overlooked a question decisive of the case. Before the opinions were written, in which the defendant’s counsel, as he supposes, discovers this misapprehension, the evidence was carefully read. It has also been carefully reread upon this motion,
That it was the defendant’s intention that the clause should be within fifteen days after non-payment, rests solely upon the testimony of the defendant and his book-keeper. They respectively testify that that was what the defendant said, and the defendant swears he said that to Cochrane; but it was not what Cochrane said to Roone, and it matters not how the fact may have been as to what passed between the defendant, his book-keeper and Cochrane, for neither the plaintiff nor his agent are chargeable with a knowledge of that. The agent Avas told by Cochrane that the defendant wanted two weeks or fifteen days’ notice if Cochrane did not pay the rent; and Avhen the instrument Avas brought to Roone altered from the form in which it was, both he, and his principal had a right to assume that that Avas what the defendant Avanted, and it would be most unjust to deprive the plaintiff of his remedy against the surety, Avithout whose guaranty he Avould not have let the premises, because he, the plaintiff, did not comply with a condition which Avas not in
It is sufficient to rest our decision upon this ground, and hold that the defendant was not entitled to the instruction he asked, that the jury, upon the uncontradicted evidence, shouldfind for the defendant, because the instrument had been altered in a material respect without the defendant’s consent. On the contrary, the plaintiff, upon the uncontradicted evidence, was entitled to a verdict, having let the premises upon the written guaranty which was delivered to him; and if it did not contain what the defendant meant it should it was through his omission and neglect, the consequence of which should not be visited upon the plaintiff.
The defendant, upon his own showing, signed the instrument first, and then left it to his book-keeper to see—I use his own language: “ if there was a certain time in it—fifteen days.” He says that he told Cochrane that “ he wanted fifteen days’ notice,” and that it was then delivered to Cochrane. Again, he says that he told his book-keeper to put in “ fifteen days’ notice after the rent was due,” which is very different from within fifteen days after the non-payment of rent, which is what the defendant says he told Cochrane,' and which the book-keeper swears was what he was instructed by the defendant to do ; but which, it appears from the instrument, he did not do. When the book-keeper’s attention was called upon his cross-examination to the alteration in his own handwriting, he said that he did not know that this alteration was made until he sa\V the instrument when he was upon the witness stand; that he saw it a month after it was signed at the defendant’s office, and did not notice then but what he had worded it according to the defendant’s direction. He further testifies, that he made the alteration in Cochrane’s presence, and then handed the instrument to Cochrane. That the defendant did not direct him to make the alteration as it appears in the paper; that he had already stated what the defendant did direct him to make; so that we have this witness distinctly remembering, long afterwards, on the trial, what the defendant did direct him to do, and when confronted
There has been no misapprehension of the facts by the -court; and the statement submitted to show it may be said rather to be devoted to convincing us that we have misapprehended the law. We are thoroughly satisfied that the. case ivas correctly decided ; that there was no misapprehen7 sion of the facts or of the law, and the motion for reargument should be denied. ¡
Joseph F. Daly, J., concurred.
Reargument denied.