Gaver v. Gaver

Pattison, J., delivered the opinion of the Court. The bill in this case was filed by the appellant to reform a bond executed by one Joseph W. Gaver as principal and the appellees, Harmon L. Gaver and Frederick W. Obenderfer as sureties. The bond which is sought to be reformed is as follows: “Know All Men By These Presents, That we, Joseph W. Gaver, Harmon L. Gaver and Frederick W. Obenderfer, of Frederick County, are held and firmly bound unto the State of Maryland in the sum of Five Thousánd ($5,000.00) dollars, current money, to be paid to the State aforesaid or its certain attorney, to which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these iiresents. “Sealed with our seals, and dated this 23rd day of March, in the year of our Lord one thousand nine hundred and five. “The condition of the above obligation is such, that if the above bounden Joseph W. Gaver, as custodian and holder of the sum of twenty-five hundred dollars for Cora J. Gaver, guardian to Grace M. Main, Oscar C. Main, Fannie FT. Main, Eoy E. G. Main and Melvin J. Main, heirs and representatives of Jonathan ⁶³⁶ O. Main, late of Frederick County, deceased, shall faithfully account with the Orphans’ Court of Frederick County, Maryland, as directed by law, for the management of the property and estate of the infants under her care, and also shall deliver up said property, agreeably to the order of the said Court, or the directions of law, and shall in all respects perform the duty of custodian and holder of the funds of said guardian to the said Grace M. Main, Oscar C. Main, Nannie NT.

Main, Eoy E. G. Main, and Melvin J. Main, infants as aforesaid, according to law, then the above obligation shall cease — it shall otherwise remain in full force and virtue. Joseph W. Gaver. (Seal) Harman L. Gaver. (Seal) Frederick W. Obendereee (Seal) “Signed, sealed and delivered in the presence of C. H. Eckstein.” The prayer of the bill asks that the bond be reformed by the insertion, of the words “Cora J. Gaver, Guardian,’ instead of “The State of Maryland” after the words “bound unto,” and the words “the said Cora J. Gaver, guardian” instead of the words “the State aforesaid, or its certain attorney/’ after the words “to be paid to,” so that the bond shall read as if originally written: “Know All Men By These Presents, that we, Joseph W. Gaver, Harmon L. Gaver and Frederick W. Obenderfer, of Erederick county, Maryland, are held and firmly bound unto Cora J. Gaver, Guardian, in the sum of five thousand dollars ($5,000.00), current money, to be paid to the said Cora J. Gaver, Guardian,” etc. This bond was before this Court in the case of State v. Gaver, 115 Md. 250 , in which case the said Harmon L. Gaver and Erederick W. Obenderfer, appellees, were sued upon said bond, Oora J. Gaver being the equitable plaintiff.

In that case this Court affirmed the ruling of the lower Court in sustaining the demurrer to the declaration. ⁶³⁷ This Court iu speaking of the bond said: “It was not given for the protection of the State or in accordance with any law requiring it to be executed for the benefit of the equitable plaintiff. ETo one was authorized to receive and accept it on behalf of the State, the obligee, and as it could not become operative without delivery and acceptance, it is not the bond of the appellees to the State.” In the case of State v. Gaver, supra, the equitable plaintiff in her declaration alleged that she was appointed guardian for the infants named in the aforegoing bond on January 21, 1903, and that she on the 23rd day of March transferred to Joseph W. Gaver, in his lifetime, as custodian and holder for her, the sum of twenty-five hundred dollars, and thereupon on the same day, to wit: On March 23rd, 1905, the said Joseph W. Gaver, as principal, and Harmon L. Gaver and Frederick W. Obenderfer, as sureties, executed under their hands and seals a certain bond or writing obligatory,” which was fully set out in the declaration and is the bond that appears herein. This Court in further discussing that case, said: “It appears, however, from the allegations of the narr. and from the terms of the bond that Joseph W. Gaver received from the equitable plaintiff the sum of twenty-five hundred dollars which belonged to her as guardian of Grace L. Main and others, and that the bond was given to secure the payment of said sum to the guardian. Hnder such circumstances the bond should have been made payable to the guardian, and was no doubt intended to be so made, as it was evidently given to secure .to her a sum for which she was bound to account.

If it was the intention of the obligors and the guardian to have the bond made payable to her and through the mistake of the draughtsman it was given to the State as obligee, and it was delivered to the guardian or to some one for her and she accepted it, believing that it was payable to her, there is no reason why, upon a proper bill filed, a Court of Equity could not correct the mistake, reform the ⁶³⁸ bond so as to make it conform to the intention of the parties and enforce it against the obligors.” It was after this decision had been handed down that the plaintiff filed her bill in this case asking for a reformation of the bond. In her bill the plaintiff alleges, among other things, that when the bond was presented to her she was told by Joseph W. Gaver, who was then and had been for sometime her attorney, that it was payable to her and that the sureties thereon “were men of sufficient property and estate to meet the obligations of said bond in the event of any default in the payment of the sum of money to be secured thereby,” and that, reposing faith in such representations of the said Joseph W. Gaver, she then and there parted with and transferred said sum of twenty-five hundred dollars ($2,500.00) to the said Joseph W. Gaver” without reading the bond. The bill further alleges that the said Joseph W. Gaver was authorized to, and did act for the appellees in all matters touching said bond and that it was the intention of herself and defendants that the said bond should be made payable to her, and though the mistake design of the said Joseph W. Gaver the said bond was made payable to the State of Maryland instead of to her as guardian. She further alleges, however, that she never saw or conversed with either of the appellees relative to the subject-matter of the bond.

The defendants in their answer deny that Joseph W. Gaver acted for them in relation to said bond, and they also deny that they were in anywise responsible for the representations made to the plaintiff by him, alleging that they had never authorized him to make any representations on their behalf respecting the bond or in respect to any other matter; and in.their answer they further deny that the plaintiff delivered to him the twenty-five hundred dollars because of such alleged representations. They further allege in their answer that the bond was payable to the State of Maryland as it was intended by them, for “as they understood, the bond was intended to guarantee the faithful per ⁶³⁹ formance of a duty undertaken by Joseph W. Gaver, which duty was to be supervised and controlled by the Orphans’ Court, as the conditions of the bond and the representations of Mr. Gaver led them to believe, and that under no circumstances would they have become sureties for Joseph W. Gaver upon a straight obligation to pay twenty-five hundred or five thousand dollars to Mrs. Cora J. Gaver Main (Gaver), “and, as they allege, the bond is the very bond they signed and they did not intend it to be payable to any obligee other than the State of Maryland, and they certainly did not intend it should be payable to Mrs. Cora J. Gaver Main (Gaver), guardian.” The principle upon which Courts of equity interpose to afford relief in cases of this character is now well established in this and other States. “Where the proof is of such character as to leave no doubt whatever in the mind of the Court that mistake has intervened and the instrument sought to be rectified is variant from the actual contract of the parties, there can be no doubt at this day of the competency of a Court of equity to so amend the instrument as to make it conform to the real intention of the parties. Rut in such cases it is not enough to show the intention of one of the parties to the instrument only; the proof must establish incontrovertiblv that the error or mistake was common to both parties. In other words, it must be conclusively established that both parties understood the contract as it is alleged it ought to have been expressed.” Stiles v. Willis, 66 Md. 555 ; Cohen v. Numsen, 104 Md. 679 ; Dulaney v. Rogers, 50 Md. 524 ; Farmville, v. Butler, 55 Md. 238 .

Applying these tests, the evidence in the record before us fails, in our opinion, to make out a proper case for the reformation asked for by the bill. The facts of this case are substantially as follows: The plaintiff, as guardian for her infant children, received on the 21st of January, 1903, from the proceeds of the sale of the lands of one Jonathan C. Main, the grandfather of said infants, the sum of $1,668.59, and on March 23rd, 1903, she ⁶⁴⁰ received from the administrators of Jonathan 0. Main the further sum of $744.85. The money received by her on the 21st of January was upon that date paid over unto Joseph W. Gaver, who was surety upon her guardian bond, for which he gave to her his promissory note, as of that date, for said amount, payable in six months thereafter, with interest at the rate of four per cent, per annum.

The sum received by her on