In this case an action was brought seeking reformation of an instrument which embodied a contract for the sale of farm property. The chancellor held that the instrument was not ambiguous and that he could find “no fraud and no mistake of a type supporting reformation.” The appellant asks us to reverse, saying the chancellor erred in his finding “the contract was not ambiguous.” While we agree with the appellant that the contract was ambiguous, we affirm because the chancellor’s decision that there was neither fraud nor mistake sufficient to support reformation was not clearly erroneous. A. R. Civ. P. 52.
The appellants and the appellees entered negotiations for the sale of the appellees’ land. They had apparently agreed on a price of $700 per acre for 805 acres. The appellants were to assume the appellee’s indebtedness to the third parties, the Alsworths, on the land in an amount of over $220,000 leaving over $343,000 to be paid to the appellees by the appellants. The only real hurdle in the negotiations was the amount of the down payment to go to the appellees. The appellants wanted to pay $5,000, and the appellees wanted in excess of $70,000 as a down payment.
In the negotiations, which took place in 1978, the parties were apparently working with a draft contract. At least, they had before them figures showing the total price for the land at $700 per acre, and how much of the total would go to the appellees and how much to pay off the Alsworths. The appellants agreed to go as high as $15,000 for a down payment, and it was suggested, by whom we are not certain, that the appellees might accept if the appellants would, in addition to making the $15,000 down payment, make the payment which would become due from the appellees to the Alsworths on January 1, 1979- It was clear that the appellees were to remain on the land until the 1978 crops came in. The negotiations ended when the appellees agreed to accept the $15,000 down payment in exchange for the appellant’s agreement to make the January 1, 1979, payment to the Alsworths.
The lawyer who had represented the appellants in the negotiations drafted the instrument and presented it to the appellees’ lawyer for review. The crucial part of the instrument is as follows:
The Buyer agrees to purchase and the Seller agrees to sell the 805 acres described above for $700.00 per acre. The total purchase price of $563,500.00. $15,-000.00 of this price has been paid as an earnest money deposit, and the Seller agrees to accept and the Buyer agrees to pay an additional $20,000.00 on the date possession is relinquished by the Seller. The remaining balance of $528,500.00 shall be paid as follows: The Sellers, as of January 1, 1979, will owe to David B. Alsworth and his wife, Juanita Alsworth, the sum of $22\,7)09.12,plus accrued interest since January 1, 1978. The Purchasers will assume this indebtedness in favor of David B. Alsworth and Juanita Alsworth. [Emphasis added].
The appellees’ lawyer asked that the italicized words, “plus accrued interest since January 1, 1978,” be inserted, and they were.
The effect of this insertion was to raise the total purchase price by over $21,000, which was the amount of interest owed the Alsworths as of January 1, 1979- The figures in the instrument representing the per acre and total purchase price were not raised accordingly but were left as they had been stated at the outset of the negotiations.
The appellants insist they did not understand that by agreeing to make the January 1, 1979, payment they were agreeing to pay the interest in addition to the principal. The appellees insist that they would not have accepted the low, $15,000 down payment without this incentive which was, in effect, a farm year free of land expense in the event the appellants went through with the deal and made the January 1, 1979, payment to the Alsworths.
When it became apparent there was a misunderstanding, the appellees insisted that, if the appellants did not make the controverted payment, they would regard the $15,-000 down payment as forfeited and the contract at an end. The appellants made the principal and interest payment to the Alsworths and brought this suit to reform the instrument.
The appellants’ complaint alleged there was mutual mistake in that both parties intended the appellants would only be responsible for the “principal indebtedness” to the Alsworths due January 1, 1979, rather than “the indebtedness.” The instrument clearly became ambiguous with the insertion of the phrase requiring the appellants to make the 1978 interest payment to the Alsworths because, for example, it recited the per acre price of $700 which had actually become something over $721. However, there is no shred of evidence that the insertion was done by fraud or trick or otherwise inequitably. There is no doubt the appellants’ lawyer who drafted the instrument knew of and apparently approved the change. Evidence presented by the appellees, including their own testimony and that of the lawyer who represented them was ample to support their conclusion they intended that the appellants be liable for the 1978 interest and would not have made the deal otherwise.
If the appellants had brought an action in which the court would have been required to interpret the instrument, there might have been a closer question, but here the court was asked to reform it on the basis of mutual mistake. Certainly the chancellor’s decision that there is no mutual mistake is supported by the testimony presented by the appellees that they were not mistaken in the least as to what was required of the appellants.
In this de novo review we do not consider ourselves bound to one theory supporting the remedy sought, but we find there was no evidence of fraud or trickery or unilateral mistake coupled with inequitable conduct by the appellees. Absent evidence of one of those occurrences, shown by clear and convincing proof, we may not reform the instrument. Tomlinson v. Williams, 210 Ark. 66, 194 S.W. 2d 197 (1946); Mitchell Mfg. Co. v. Kempner, 84 Ark. 349, 105 S.W. 880 (1907).
Affirmed.
Wright, C.J., and Howard, J., dissent.