Norton v. Coley

Citations

• 45 Miss. 125

Syllabus

<p>1. Chancery —reformation of written instrument.—If by fraud, accident or mistake, a written instrument does not express the terms of the contract between the parties, equity will remodel it, so as to evidence the actual contract.</p> <p>2. Same—issue referred to a jury—the party dissatisfied with the VERDICT MUST URGE HIS OBJECTION IN THE CHANCERY COURT, AND WILL not be heard here. — Where an issue of fact is referred by the chancery court to a jury, at the instance of a party, and he takes no steps to get rid of the verdict against him in the chancery court, the issue will not be re-opened here.</p> <p>3. Same — character of evidence required to reform written instrument.—Where a written instrument is sought to be corrected because of alleged variance from the terms agreed on between the parties, the evidence of such variance should be clear and satisfactory.</p> <p>i. Same —same —verdict of a jury in such case. —The verdict of a jury, upon issue joined between the parties, finding that the writing does not truly express the contract made between them, is sufficient evidence to warrant relief.</p> <p>5. Supreme court—formal exceptions to the proceedings en the court below.—This court is not disposed, after the parties have had a full' hearing on the merits in the court below, to lend a willing ear to formal exceptions, grounded on the order of the proceedings and state of the pleadings.</p> <p>6. Chancery court—practice—demurrer undisposed of—how waived — case in hand. — After answer filed, the complainant by leave exhibited his amended bill for the sole purpose of making a new party defendant, in no manner varying the attitude of the case between the original parties, and the defendant got leave to withdraw his answer, and he-filed a demurrer to the bill, of which no disposition was made. The case was “set down for hearing on bill, answer, amended bill and answer, proofs and exhibitsand while in this attitude the defendant applied fora jury to try the “issue.”