raise the bid. I told him I would not. I looked the land over before the sale. After wards he asked me to come up to the scrivener's office that afternoon, and we closed up the deal. I had been dealing in land for some years, and found it was difficult to find some of the government corners. Some of the fractional pieces would overrun, therefore I insisted on having it surveyed. When my time came to settle, Ed Anderson, Mr. Trump and the lawyer (meaning the scrivener who drew the contract), were present. Says I, 'Is there any certainty in the acreage of this?' The lawyer says, "The original survey says 104% acres.' Says I, 'Does that mean to the center of the road?' Mr. McMains said, 'You have bought land enough to know that you have to buy half the road.' I made the statement that I was willing to pay for it, or that I wouldn't have it removed for a certain amount, something like that. Then I insisted that it be surveyed. I said I must have it surveyed. "Then I will know just what I am getting, the exact number of acres.' I was to pay $100 an acre according to acreage. Mr. Trump said to the lawyer, 'Can you get a surveyor? He said, 'Yes, sir.' Then he says, 'Get it surveyed.' He didn't say, 'Get the lines,' but just, 'Get it surveyed,' and I never thought until July, 1912, but what that was the understanding that I should pay for the acreage to the center of the road, not knowing that all the road came off me. I never would have signed the contract if I hadn't expected to get just what I paid for by the acre, up to the center of the road, not knowing that the road was off me at the time."

He further testified: "After they had fail ed to make a sale at auction, McMains called on me and asked me if I would buy that as I had bid at the auction. After some conversation he told me he thought the matter would be arranged, and asked me to come over to Fancher's office. I went there. think Fancher drew the written contract. think Mr. Trump asked him to draw the contract."

I

I

Witness Ed Anderson testified that he was present at the time the contract was made. Noble said to Fancher that he wanted it understood that he was buying to the middle of the road. "Q. What did Fancher say to that? Did he make any reply? A. I don't know. He made this statement on the day the contract was made. I could not say whether it was before or after the contract was written."

This is all the evidence, except some talks which plaintiff claims to have had with Fancher long after the making of the contract, and at a time when the record does not disclose that Fancher, the scrivener who drew the contract, was acting in any way for the defendants, or had authority in any way to bind them by what he said. It is apparent then that the plaintiff's contention is, not that he was deceived into signing this contract, but that he had entered into a different oral contract than that embodied in the writing. The plaintiff, therefore, assumes the burden of proving that the contract actually entered into was as claimed by him, and not as expressed in the writing. It is not sufficient to show that the writing does not express something which the plaintiff understood to be a part of the contract, but that an actual contract was made and intended to be embodied in the writing and expressed in the writing at the time they undertook to reduce their contract to writing, and that this oral contract was, by mutual mistake or inadvertence, or fraud of the other party, not expressed in the writing. When parties enter into a contract and reduce the contract to writing, the contract is presumed to contain the agreement between the parties, and that all previous talks and agreements are merged in the writing, and that the writing expresses the contract upon which the minds met. See Hoyer v. King, 101 Iowa, 363, 70 N. W. 695.

In Jurgenson v. Carlsen, 97 Iowa, 627, 66 N. W. 877, an action was brought for judgment upon a note, and to foreclose a mortgage given to secure it. The defendant pleaded a mistake in the note and mortgage, and asked that the same be reformed to conform to the understanding of the parties. The court said:

to Carlson, he expressed himself as satisfied

therewith. It also appears that defendant made no claim of mistake until about the time the answer was filed, but told a disinterested party that his defense to the suit would be that the plaintiff had failed to notify him that the interest was due. There is not such clear and satisfactory evidence in the case as to justify a reformation of the instruments."

In the case at bar, it appears that the writing was read over to the plaintiff; that he had full knowledge of and understood its contents; that he signed it without any objection to the instrument as drawn, or to its provisions; that he made no complaint until he served the notice on the defendants hereinbefore set out; that he had then paid $10,000 upon the contract. There is no question, we will say, in this record, that the plaintiff desired the land surveyed; that the land was fractional, and, upon survey, was shown to contain 104% acres, the exact amount of acres stated in the written contract. It was not known by the plaintiff or the defendants definitely then that the entire road was upon the land conveyed. Plaintiff said, at the time the contract was made, that he would not have the road taken off for twice its value. His attention was specially called to the road. The only contention that the plaintiff can make touching this contract is that he was to buy but one-half of the road upon the land purchased. He does not now claim that he purchased all the land covered by the description in his contract, but says he purchased all that portion of the W. 1⁄2 of the N. W. 4, etc., lying east of the center of the road, that along the west side thereof. He does not claim that he purchas

ed it all, and by agreement was to pay only to the center of the road. This would present a different question.

It

The

In determining the weight to be given to the evidence, it is essential that we consider the reasonableness or unreasonableness of the claims made. It would not strike the mind as reasonable that the defendants, owning this entire fractional piece of land, should, in the conveyance, reserve to themselves a strip 30 feet wide along the west side. does not seem reasonable that the plaintiff should have purchased, with the understanding that the defendants should retain, subject only to the easement, a strip 30 feet wide along the west side of this land. conversation testified to, in which McMains is claimed to have said to the plaintiff, “You have purchased enough land to know that you only have to pay to the center of the road," unquestionably had reference to conditions where the road was upon the section line, each abutting owner owning to the middle of the road, subject to the easement. There is no dispute, although there is some evidence offered tending to suggest a dispute, that the plaintiff was to pay $100 an acre for this land. There is no dispute that the land described contained 104% acres. The only controversy is as to whether or not the

defendants reserved a strip containing 2 acres off the west side of the land. The evidence offered to reform the contract does not have that persuasive force that the law requires before a court of equity is justified in reforming a written instrument, where it the parties, and substituting therefor an enwas understandingly entered into between tirely different contract than that expressed in the written contract. To justify a decree the evidence must be clear and satisfactory. reforming a contract on the ground of fraud, A mere preponderance is not sufficient. To allow the reformation of a written instrument involving title to land, on the ground of mistake, or inadvertence, or fraud, the proof must be clear and satisfactory. Any other rule would be dangerous to follow, and tend to weaken confidence in titles and in written agreements. 131 Iowa, 109, 107 N. W. 1106; Johnson v. See Frey v. Camp, Insurance Co., 126 Iowa, 565, 102 N. W. 502; Tufts & Colly v. Larned, 27 Iowa, 330. In

this case it is said:

Indeed, this is the universal holding of this court upon this proposition. Many authorities might be cited in support of it. See, further, Hervey v. Savery, 48 Iowa, 313; Clute v. Frasier, 58 Iowa, 268, 12 N. W. 327.

We think the record in this case fails to show that quantum of proof, sustaining plaintiff's contention, to justify the decree of the find that the written contract, therefore, court from which this appeal is taken. We must stand as the expression of the agree ment actually entered into between the parties, and that plaintiff's petition, in so far as it asks for a reformation of the contract, ought to be, and is, dismissed.

The cause is therefore reversed and remanded, for decree and judgment in accordance with this opinion.

Reversed and remanded.

EVANS, C. J., and LADD and SALINGER, JJ., concur.

HANKINS v. YOUNG. (No. 30192.) (Supreme Court of Iowa. Feb. 19, 1916.) AMENDMENT 1. PLEADING 248

NEW

CAUSE OF ACTION. In an action against a decedent's estate for services rendered under a contract whereby plaintiff agreed to live with decedent and his wife and care for them in return for decedent's ment to the complaint, not alleging any new promise to provide for her in his will, the amendcontract, but that the contract originally pleaded was made through plaintiff's father for her use and benefit, and that she consented thereto. and under it entered upon the performance of her duties, did not set up any new cause of action, since the amendment added nothing to

treat him and his wife with the care and kindness usually given by a daughter, and do the work and take care of him and his wife, he would clothe her, furnish her board and lodging, and at his death would provide by will a generous allowance and compensation for her services, attention, and care; that, relying upon such promise, she did, on or about July, 1901, go to the home of George Bix and live in his family and perform all the services required of her until September, 1905; that these services were reasonably worth the sum of $1,000; that said George Bix breached said contract and agreement, in this, that on his death he neglected to make any provision for this claimant. On the 16th day of May, 1913, the plaintiff amended her petition or claim, alleging that the agreement referred to as made between George Bix and herself was not made with her personally, but with her father, John I. Bunker, for her use and benefit, to which agreement she consented, and thereafter she performed all the services required of her by her contract. A demurrer was interposed to the petition as amended, on the ground that the amendment set up a new cause of action, in that it now claims that the contract sued on was made between John I. Bunker, the father of the claimant, and the deceased; whereas, the original petition claimed that the contract was made between George Bix and the claimant, and that the amendment to plaintiff's petition created a new cause of action which is barred by the statute of limitations, having been filed more than 12 months after administration of said estate had been taken out. This demurrer was overruled, and to this defendant excepts. Thereupon the defendant filed an answer in which he denies the allegations of claimant's petition, except as hereinafter admitted. Admits that George Bix died on or about January 8, 1912. The defendant further alleges facts upon which he predicates the same defense raised by the demurrer, to wit, that the action is barred by the statute of limitations, and further alleges that the plaintiff came to the family of the said George Bix, to live with said George Bix and family as a member thereof, and was to do so for her board and clothing only; that she received board and clothing while she so resided, and is entitled to nothing more. Further allegations are interposed as to her treatment of the deceased and his wife. Upon the issues thus tendered, the cause was tried to the court and jury, and a verdict returned for the plaintiff in the sum of $1,000. The claim being allowed in that sum against the estate of George Bix, the administrator appeals.

[1, 2] The first error relied upon for reversal is that the court erred in permitting the claimant to file an amendment to her petition. This error is predicated on the thought that the amendment sets up a new cause of action and was not filed until more

than 12 months after letters of administration had been issued, and was therefore barred by the statute of limitations. The second error involves the same thought, and the complaint is that the court erred in permitting the plaintiff to offer and introduce evidence tending to show a contract between her father and George Bix, because no such claim was made in the original petition.

To properly dispose of these errors requires us to determine what the cause of action was upon which plaintiff relied for recovery in her original petition, and what the cause of action was as alleged in the amendment to her petition. The allegation of the original petition is that George Bix made an oral agreement with the claimant that, if she would live, etc., in his family, he would provide by will a generous allowance and compensate her for services, attention, and care. The contract is the basis of the action. The services, she claims, were rendered under this contract. The amendment does not allege any new contract, but says that the contract relied upon was made through her father for her use and benefit, and that she consented to such contract, and under it entered upon the performance of the duties required of her. The contract alleged is the same. The allegation as to the party through whom the contract was made differs. Under the original claim, it would be competent for the plaintiff to show that the contract relied upon was made by her father for her use and benefit; that she accepted the contract so made, and thereunder discharged the duties required by the terms of the contract. The amendment added nothing to this right. Though the father, in the strict sense, was not an agent acting for the daughter, yet he did, in fact, act for her in this transaction. He received the proposition made by the deceased, communicated it to the plaintiff; she accepted and acted upon it. It therefore became the contract of the plaintiff with the deceased.

As bearing upon this point, see Poole, Gillam & Co. v. Hintrager, 60 Iowa, 180, 14 N. W. 223. In this case, the holding is that, where the petition alleges a contract with the defendant, the plaintiff may show that it was made with the agent of the defendant, for the use and benefit of the defendant.

In Hammond v. S. C. P. R. Co., 49 Iowa, 450, it is held that an amendment to a petition does not state a new cause of action, when it does not change the nature of the claim, and when the same evidence is admissible under the original petition as would have been under the amended one.

[3] Where an amendment is germane to a cause of action originally stated, and amplifies more fully the statements of an original claim, the amendment relates back to the date of the original filing, and is a part thereof, and, if the original was filed in time, the amendment, will be so considered. As

bearing upon this question, see Sachra v. Town of Manilla, 120 Iowa, 562, 95 N. W. 198. See, also, Gordon v. Railway Co., 129 Iowa, special point at page 750, 106 N. W. 177.

We find no error in the action of the court in respect to the amendment.

It will not be convenient to take up the errors relied upon by the plaintiff in the order, numerically, in which they are assigned. We will endeavor to treat each proposition, however, in all the fullness with which it appears in the argument of counsel as we proceed with the opinion.

[4, 5] It is alleged by plaintiff that the proposition made by the deceased to plain

tiff's father did not constitute a contract

available to this plaintiff, or afford a basis for action on her behalf for the reason that the contract was not accepted at the time it

was made. There is no occasion to cite authority to establish the proposition that an offer, unaccepted, makes no binding contract, and that the acceptance must be on the terms of the offer that it may be binding on both parties.

The record in this case discloses that John I. Bunker is the father of the complainant; that the complainant was, at the time it is alleged the contract was made, residing with one Smith. He testifies that deceased came to him one day and wanted to know if Effie (the claimant) would come and live with him and his wife. His answer was: "I don't know. I think she has got a good home there"-meaning at Smith's. Deceased then

said:

"If she will come and live with me until she is of age or married, I will board and clothe her if she will treat us as a daughter should. We will treat her the same as our own child, and I will remember her in my will and make ample provision for her services."

To which proposition he says he replied as follows: "If Effie wants to make the change, I guess it will be all right with me." He further says that shortly afterwards he talk

ed with claimant about it; that he told her of the agreement or proposition made by Mr. Bix. He says, "I explained the talk I had with Mr. Bix and what he agreed to do." That she came to him shortly afterwards, probably a day or two, and wanted to go, and he told her it was all right with him. The plaintiff testifies that she learned from her father what the agreement was between him and Mr. Bix, as to what they would do for her if she went to live with them; that she went to live in the Bix family in 1901; that she was then 16 years of age; that thereafter she did the housework and chores out of doors, cooking and washing, and ironing and scrubbing, did part of the mending and sewing for the family, and general house

work.

"Mrs. Bix was not very strong. Part of the time, she was sick in bed, and then I nursed her, besides doing the work. Sat up with her while she was sick until she would tell me to go to bed. Prepared all the meals for the family;

There is evidence that she did the outdoor work, mowed and raked the lawn, carried in wood and cobs and the like, took care of the horses, unloaded coal from the wagon into the coalhouse, unloaded corn into the crib, mixed mortar for the plasterer, and carried it to him. Mr. Bix kept two horses all the time, had one cow all the time and sometimes two, had three or four acres of pasture on which he kept stock; that the plaintiff resided in the Bix family and per1905. There is evidence that, while she was residing in the Bix family, Mr. Bix was until she was 18 or married, he expected heard to say that, if Effie stayed with them that the home would be hers when they got through with it.

formed the labor as above indicated until

Mrs. Bix, widow of the deceased, testified: "She came to stay at our house for her board and clothes, and that was all she was to get. She came immediately after making the arrangement. She lived with us four years. I talked over the arrangement with her as to what she should get on coming here. It was her clothes and board. Yes, I talked that over with her. I also talked it with her father. I told him she was to get her clothes and board, and that was all she was to get. While she lived with us, we bought her a bicycle, a hammock, a ring, and a watch. Mr. Bix bought a piano and gave her music lessons. She said it wasn't her understanding that Effie was to get the piano, and she didn't get it."

It does not appear from the testimony of Mrs. Bix when she had these talks with the plaintiff. It discloses, however, that she understood that there was some arrangement made with the plaintiff touching compensation to be paid for services rendered. does not say that the claimant made any statements, or, if she made any, what the statements were. She says she talked it over She talked it over with with the claimant.

She

the claimant's father, and told him that she was to get but her clothes and board. She

She

does not disclose any statements made by her husband touching the matter, or any conVersation with him as to the consideration fended with the claimant before the claimto be paid. It appears that she became ofant left. This attitude towards the plaintiff seems to have grown out of the fact that she conceived the idea that the girl was trying to work her husband for money. seems to have been offended by the evidence of affection on the part of this girl for the old gentleman. It seems that, whether a part of her duties or not, she washed the old gentleman's neck and ears for him on this because the water he used was too hot Sunday mornings. for Mrs. Bix to handle. This old lady, at the time of giving her testimony, was very deaf. Her memory was poor. She testifies:

She said that she did

"I don't recollect the year she came, or the time she left, or the year I moved to Newmarket, or the year I got married."