(141 Ind. 596)

CARSKADDON ▾. CITY OF SOUTH BEND et al.

(Supreme Court of Indiana. June 14, 1895.) REFORMATION OF CONTRACT-MISTAKE OF ONE

PARTY.

A resolution of the city council "that the mayor be instructed to purchase" plaintiff's property cannot, at plaintiff's suit for specific performance, be amended by parol, on the ground of mistake, so as to express a completed purchase, especially where the mistake was not mutual. 39 N. E. 667. affirmed.

Overruled.

On petition for rehearing.
For former opinion, see 39 N. E. 667.

HACKNEY, J. One insistence of appellant's learned counsel is that, with reference to a memorandum, made for compliance with the statute of frauds, the rule as to ordinary contracts, requiring mutuality of obligation, does not obtain. Another is that we were in error in holding that such memorandum could not be amended by parol to express the intention of the parties. As to the first of these propositions, it may be said that it is probably too much to say that such a memorandum may not be unilateral, or that a suit cannot be maintained to enforce performance of a written promise orally accepted, and that acceptance given renewal by the suit. However, that conclusion does not render it necessary to reverse the ruling of the lower court, since it must be true in every instance that the mistake which may be corrected in equity must be mutual. Here there is no mutuality in the alleged mistake. mistake alleged, and the only possible mistake, was that the intention of the mover of the resolution was to express a completed purchase instead of a direction to purchase, and not a mistake of the common council. But the rule held in Baldwin v. Kerlin, 46 Ind. 426, is that "it is not sufficient that one of the parties should have been mistaken." This rule would seem to deny the right to reform, as against the party making it, a memorandum merely unilateral. How the two parties to an oral agreement, of which the memorandum is but the evidence, could, by mutual mistake, omit from a memorandum by but one of such parties an essential element thereof, would not appear v.41N.E.no.1-1

The

possible. The present memorandum not only omits the statement of a completed purchase, but to make it do so would flatly contradict the expressed intention of the council to direct a purchase. While perhaps it is going too far to say that no contract of sale or for the sale of real estate inter partes may be reformed to express the intention of the parties, we think it clear that equity will not insert in an unilateral memorandum, not embodying the intention to buy or to sell, that very essential feature, the omission of which left the memorandum as so much waste paper. The case of Lee v. Hills, 66 Ind. 474, in principle, so decides. A like case is that of Banks v. Manufacturing Co., 20 Fed. 667. In 2 Reed, St. Frauds, § 487, is stated even a much broader doctrine: "The weight of authority, in spite of or consistently with what has already been said, is probably that the omission of a term from a writing, though done by fraud or mistake, will not, without more, allow oral proof of the contract, unless there be an estoppel arising from a change in his situation made by the party setting up the oral contract; and it has been held that mistake in the substance of a written contract will not be corrected on oral evidence." And further: "The principles which are to determine this question are tested best by the consideration of the point as to whether or not the rule of admission of oral proof on the ground of fraud or mistake is merely a weapon of defense, or whether chancery, upon oral proof, will correct the mistake or fraud, and decree the contract as reformed. Much of the contradiction which is to be found in the decisions may be reconciled by observing this distinction, and of those which still conflict many will be those in which the oral evidence was admitted because there was estoppel or part performance. As a general rule, it may be said that oral evidence of fraud or mistake will not be admitted on behalf of a plaintiff seeking specific enforcement of the contract as established by the oral evidence." It is said in Wood on Frauds (section 345, p. 657): "The object of the statute in requiring a note or memorandum in writing to be made is to prevent disputes as to what the parties had agreed to and intended, and therefore the

memorandum or note supersedes the prior parol agreement, and excludes all proof as to what was said by the parties, or even to show a mistake in the writing itself." We need not accept the broad doctrine announced by these authors. It is enough when we hold that there may be no reformation where it would result in a contradiction of the memorandum, and would introduce an element not agreed upon by the parties, and not omitted by the mistake of the party sought to be charged, or by the mutual mistake of such party and the party who would enforce the memorandum, if reformed. The petition is overruled.

Const. art. 5, § 1, vesting the executive powers of the state in the governor, does not preclude the legislature from passing an act making the governor, auditor, treasurer, secretary of state, and attorney general a board for the selection of prison directors.

Appeal from circuit court, La Porte county; Lucius Hubbard, Judge.

Action by the state, on the relation of Charles Harley, to oust James W. French from the office of prison warden. Judgment was rendered for relator, and defendant appeals. Affirmed.

G. V. Menzies and John R. Wilson, for appellant. W. A. Ketcham, for appellee.

HACKNEY, J. On the 12th day of March, 1895, the governor appointed and commissioned Henry A. Barnhart, Monfort D. Yontz, and Henry A. Root members of the board of prison directors for the prison North, of the state of Indiana. After taking an oath of office and executing bonds, the gentlemen named organized as such board, and on the 19th day of March, 1895, selected and appointed appellant to the position of warden of said prison. The appellant qualified, gave bond, and continued in the possession and discharge of the duties of said position, he having served in said position the two years immediately preceding said appointment. By the second section of the act of the general assembly of March 7, 1895, the governor, auditor, treasurer, secretary of state, and attorney general were constituted a board for the selection of prison directors. That board, on the 12th day of March, 1895, appointed Enos H. Nebeker, Robert S. Foster, and Henry Van Voorst as members of the board of prison directors for said Northern prison; and, after qualifying and giving bonds and taking an oath of office, they organized as the board of prison directors, and on the 19th day of March, 1895, appointed the relator, Charles Harley, as warden for said prison. The relator, having qualified and given bond, demanded from the appellant the position,

| books, and records of such warden; and, the appellant having refused said demand, the relator brought this suit to oust the appellant from and to establish himself in said position. The sufficiency of appellee's petition and the sufficiency of appellant's answer, to which the lower court sustained the appellee's demurrer, raise the question for decision in this court.

The constitutional validity of said section 2, p. 160, Acts 1895, is challenged by the appellant. The section is as follows:

"Sec. 2. The said board of prison directors shall be elected by the governor, auditor, treasurer, secretary of state and attorney general, who are hereby constituted a board for the purpose. The said state officers shall meet on the 12th day of March, 1895, at 10 o'clock a. m. on said day, in the office of the auditor of state, and proceed to select and appoint the members of the said board of prison directors for each of said prisons, an:1 every four years thereafter on said day for the said purpose; and in the case of a vacancy happening at any time on either of said boards of prison directors intermediate between the said quadriennial elections it shall be the duty of the auditor of state to convene said state officers in his office, by written notice served upon each of said officers fixing a time for such meeting, at which meeting the said state officers shall fill any vacancy, in accordance with the provisions of this act. A majority of the state officers, when in session for said purpose, shall constitute a quorum, and a majority of the quorum shall have power to make any appointment upon the said boards of prison directors."

The principal contention of appellant's learned counsel is that, under the constitution (section 1, art. 5), "the executive powers of the state" are "vested in" the "governor"; that appointment to office is an executive function; and that the constitution does not, expressly or by implication, deny the exercise of this function to the governor. If this power was so lodged, in violation of the constitutional authority, in the governor, it is insisted, and follows of necessity, that the appointment of the directors, and in turn their appointment of the relator, were invalid. The constitutional provisions upon which the issue rests, in addition to that vesting the executive power of the state in the governor, are as follows: "The powers of the government are divided into three separate departments; the legislative, the executive, including the administrative, and the judicial; and no person charged with official duties under one of the departments shall exercise any of the functions of another, except as in this constitution expressly provided." Article 3, § 1. "All officers whose appointments are not otherwise provided for in this constitution shall be chosen in such manner as now is, or hereafter may be, prescribed by law." Article 15, § 1.