#### Garage Equipment Manufacturing Company, Respondent, vs. Danielson, Appellant.

*November 20, 1913*

February *24, 1914.*

*Equity: Adequate remedy at law: Waiver of objection: Reformation of contract: Evidence: Sufficiency: Laches: Jurisdiction: Milwaukee civil court: Appeal: Affirmance.*

1. In an action for equitable relief the objection that plaintiff has an adequate remedy at law is waived if not taken by demurrer or answer.

2. Reformation of a written contract on the ground of mutual mistake can be had only upon clear and convincing evidence thereof.

3. Where reformation was granted upon what the trial judge in an opinion styled “a slight preponderance of the evidence,” but this court is satisfied that the evidence was in fact clear and convincing, the judgment below, being right, is affirmed, although arrived at by the adoption of an incorrect rule of law.

4. Under the circumstances of this case (stated in the opinion), plaintiff was not guilty of laches in failing to detect the mistake in the contract, nor was there unreasonable delay in seeking reformation.

5. The civil court of Milwaukee county having no equitable jurisdiction, the affirmative defense of a mutual mistake in the execution of a contract sued on in that court is not available without reformation of the contract, and the action to reform is properly brought in the circuit court.

Appeal from a judgment of the circuit court for Milwaukee county: E. 0. Escecweiler, Circuit Judge.

*Affirmed.*

Suit in equity to reform a building contract and to enjoin, pending the suit, the prosecution by the defendant of an action previously brought by him on the same contract in the civil court of Milwaukee county to recover a balance claimed to be due him for the construction of the building. Plaintiff intended to erect a building for its manufacturing plant on a lot on Rational avenue in the city of Milwaukee, and plans and specifications therefor were prepared by its ar-*91cbitect, J. H. Esser. Later tbe plaintiff abandoned its intention to build on tbe National avenue lot, and proceeded to erect its building at tbe corner of Sontb Pierce street and Eleventh avenue on a lot of a different shape and size. Tbe plans for the National avenue building contemplated tbe placing of tbe boiler bouse inside of tbe main building. Tbe proposed plans for tbe new site provided for tbe lengthening of tbe building sixteen feet, for a boiler house outside of tbe main building, and for tbe substitution of a concrete floor in place of a floor of mill construction for tbe. first floor of said building. Eor additional facts see *Danielson v. Garage E. M. Co.*151 Wis. 492, 139 N. W. 443.

Tbe court found that on or about tbe 26th day of March, 1910, tbe plaintiff and defendant entered into an oral agreement whereby defendant agreed to erect tbe building according to a change in tbe plans as above stated; that such agreement was at or about said date reduced to writing, but that by mutual mistake of tbe parties thereto it referred to plans and specifications “signed by tbe parties” when none were in fact signed by them, and by mutual mistake it referred t'o tbe original plans without specifying tbe changes agreed upon. Tbe judgment corrected tbe contract' by striking from paragraph numbered 1 thereof tbe words “which plans, drawings, and specifications are identified by tbe signatures of tbe parties hereto,” and inserting in tbe place thereof tbe words “'subject to certain modifications to be made therein by tbe architect, which shall consist in tbe lengthening of tbe factory building herein referred to from a depth of 140 feet to a depth of 156 feet, tbe construction of tbe boiler room outside instead of inside of tbe main lines of said building, and tbe substitution in tbe first floor of said building of a floor of concrete construction in tbe place of a floor of mill construction.” Tbe contract was further ordered amended in other portions thereof to make it conformable to tbe changes above indicated.

*92Erom a judgment entered accordingly, and which also vacated the temporary order restraining the defendant from prosecuting the action brought in the civil court, the defendant appealed.

*Charles T. Hickox,*for the appellant.

Eor the respondent there was a brief by *Flanders, Bottwm, Fawsetl & Bottwm,*and oral argument by *Charles F. Monroe.*

The following opinion was filed December 9, 1913:

ViNJE, J.

One of the principal contentions of the defendant is that plaintiff had an adequate remedy at law, because the ambiguity in the contract as to what plans were therein referred to could be explained by parol evidence. It' is needless to inquire into the merits of this contention, for the objection that plaintiff had an adequate remedy at law, not having been taken either by demurrer or answer, was waived. *Meyer v. Garthwaite,*92 Wis. 571, 66 N. W. 704; *Bigelow v. Washburn,*98 Wis. 553, 74 N. W. 362; *Pippin v. Richards,*146 Wis. 69, 130 N. W. 872.

In his written opinion the trial judge says, in effect, that under the presumptions that arise and by a slight preponderance of the evidence plaintiff is entitled to a reformation of the contract. Were the evidence no stronger than this in plaintiff’s favor, reformation would have to be denied, for it is settled law in this state that reformation of a written contract on the ground of mutual mistake can be had only upon clear and convincing evidence thereof. *Harter v. Christoph,*32 Wis. 245; *Blake O. H. Co. v. Home Ins. Co.*73 Wis. 667, 41 N. W. 968; *Kruse v. Koelzer,*124 Wis. 536, 102 N. W. 1072. After a careful examination of the evidence we are satisfied that it meets the legal call, and the trial judge’s characterization of it as only slightly preponderating becomes immaterial. If the judgment is in fact correct, it must' be affirmed though arrived at on the part of the trial *93court by tbe adoption of an incorrect rule of law. Tbe judge correctly found tbe facts and ordered tbe right judgment' to be entered. An inadvertence or a mistake in bis written opinion cannot affect tbe result. *Harris v. Welch,*148 Wis. 441, 447, 134 N. W. 1041; *Estate of Koch,*148 Wis. 548, 561, 562, 134 N. W. 663; *Gauf v. Milwaukee A. Club,*151 Wis. 333, 336, 139 N. W. 207. To set out tbe evidence that supports tbe conclusion reached would not add t'o tbe legal value of tbe opinion, owing to tbe facts being peculiar to this case.

Tbe trial court found as a conclusion of law that plaintiff was guilty of laches in failing to examine the contract and to detect tbe mistake. No finding of fact' to that effect is made, and we think none would be supported by the evidence. The contract was entered into about' tbe 26th of March, 1910, but it was not until July, 1911, that plaintiff received a bill from defendant showing that extra charges were claimed. Then efforts at settlement were made, which occupied some time, and finally defendant brought action in tbe civil court to recover tbe balance claimed due him. That action was appealed to tbe circuit court, and from it to this court (see 151 Wis. 492, 139 N. W. 443), and remanded for further proceedings. This action was begun in March, 1913. No mere inspection of the contract would show what plans were referred to, and it was not until plaintiff was apprised by defendant’s claim that plans with tbe boiler bouse inside was what tbe contract called for, that it bad notice of tbe mutual mistake. After that time it did not delay unreasonably in seeking reformation, in view of tbe effort at settlement and tbe pendency of tbe action in tbe civil court.

Since no equitable jurisdiction is conferred upon tbe civil court of Milwaukee county, tbe action to reform tbe contract was properly brought in the circuit court. Without reformation plaintiff could not, in an action at law, avail itself of tbe *94affirmative defense of mutual mistake in the execution of the contract. *Casgrain v. Milwaukee Co.*81 Wis. 113, 51 N. W. 88.

*By the Oourt.*— Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on February 24, 1914.