Face Challenges Confidently

373 Gail v. Berry

Monday, August 31st, 2015

Richard F. Brown

The following is not a legal opinion. You should consult your attorney if the case may be of significance to you.
Gail v. Berry, 343 S.W.3d 520 (Tex. App.—Eastland 2011, pet. struck) held that the merger doctrine would not bar consideration of a contract of sale when the deed does not reflect the true agreement of the parties due to a mutual mistake. The sales contract reserved the minerals, but the deed did not because of scrivener’s error. Purchaser contended that the merger doctrine prevented using the sales contract to interpret the unambiguous warranty deed. “However, the merger doctrine applies only in the absence of fraud, accident or mistake.” “A scrivener’s failure to embody the true agreement of the parties in a written instrument is a ground for reformation on the basis of mutual mistake.” The deed was reformed to reserve the minerals to seller.
The significance of the case is the limitation on the merger doctrine which prevents its use to perpetuate a mutual mistake.