Contracts — mutual mistake

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Wisconsin Court of Appeals

Civil

Contracts — mutual mistake

Even if both parties were unaware of a defect, the doctrine of mutual mistake is unavailable, where the contract did not represent there were no defects.

“Based on that law, we conclude that the Ivancevics have failed to set forth a valid mutual-mistake claim because they have failed to produce any evidence that the sales contract entered into by the Ivancevics and the Reagans, that is, the Option to Purchase, guaranteed them a defect-free home. On summary judgment, the Ivancevics, as the party seeking reformation, were required to present evidence of the possibility that the parties were mutually unaware of a fact material to their agreement at the time they entered into it. See Gielow, 268 Wis. 2d 673, ¶22 (‘Mutual mistake exists where both parties to a contract are unaware of the existence of a past or present fact material to their agreement.’). But the Ivancevics have presented no evidence that the Option to Purchase contemplated the sale of a defect-free home. In fact, the circuit court dismissed the Ivancevics’ contract claim, which was based on their argument that the Reagans represented that the Residence would be defect free, and the Ivancevics did not appeal that dismissal.”

Affirmed.

Recommended for publication in the official reports.

2012AP2294 Ivancevic v. Reagan

Dist. I, Milwaukee County, Martens, J., Brennan, J.

Attorneys: For Appellant: Schulz, Richard H., Milwaukee; For Respondent: Murphy, Mark, Milwaukee