161 P. 955 | Or. | 1917
delivered the opinion of the court.
“The lease was to be made for five years and they were to give one third of the crop in the warehouse; they agreed to the whole substance of it.”
To the question: “Was there anything said at that time about the terms of it that you recall?” he answered, “No, sir.” He further stated the substance of the conversation about the equipment, and that that was the extent of the conversation there that day; that he was present all the time when. Bott was there with his father. On cross-examination he testified in part that a few days before the lease was drawn this conversation was held—
“around the place, part of it in the house and part of it around the machine-shed and barn; they walked around.
“Q. Was there anything said about the general terms of the lease of the farming lands?
“A. No, sir.
“Q. Where was that discussed about the farming lands?
“A. About the. terms of the lease, it was discussed a few days before that when Mr. N. K. Bott came down to see about renting the place.
“Q. But on that date what was discussed, or was anything said about the lease that day?
“A. There was nothing said about the lease at all that day.
“Q. Was anything said at all about the farming lands that day when Mr. Grover was there?
“A. No, sir; it was all about the outfit that was talked about that day.”
The witness stated that if the summer-fallow was mentioned it was somewhere else; that about a weék
“My father said to him he should leave the ground plowed the last year; that is all there was said. * *
“Q. Was there anything said about whether he was to get any pay for it or not?
“A. No, sir; there was nothing said either way. * * He [plaintiff] said he would plow the land the last year of the lease, the last year he was there.
“Q. Did that mean all the land, he was to plow all the land the last year, or did he say what he meant?
“A. It was not said but it was taken for granted that he would plow the part which was in stubble. * *
“Q. Wasn’t it also taken for granted, if there was any summer-fallow left there, a reasonable price was to be paid for it? (Objection by counsel and ruling by the court.)
“Q. Do you know whether that was taken for granted or not from the course of the conversation you heard there?
“A. I thought it was.”
Mrs. Harriet Campbell, widow of the lessor, testified to the conversation on the front porch the first time that plaintiff came there to rent the place, and stated: “They didn’t come to any definite conclusion the first time about all of the details, but it was afterward,” that she did not hear all the conversation between the parties at the second meeting, but that a definite bargain was made the second time the parties were there. The only effect of the evidence of Mrs. Campbell and Charles A. Campbell is that they did not hear the agreement as to the extra work. Mr. C. A.
The lessee “agrees that he will cultivate and summer fallow the said lands each year during the life of this contract, and will summer-fallow the land during the last year of said contract; the work to be done in a good and husbandlike manner, and will furnish all seed necessary to sow the same, and that prior to sowing said lands he will keep the same free and clear from weeds. Said second party agrees to cut, thrash and take care of said crop so grown on said lands, in proper season, and that he will deliver to the said first party, one third of the grain so grown at the warehouse designated by the said first party, free of all expense to the said first party, as soon as the grain is thrashed, said second party to furnish all new sacks for all the grain so grown. * * ”
It was well known that no crops could be raised during the time the land was in summer-fallow; therefore the parties proceeded with that understanding. Plaintiff cultivated and raised crops upon about one half of the land, and plowed and summer-fallowed the other half each year for four years, and paid defendants their portion of the crop, which was accepted without
The language of the instrument is so general that it is not at all strange that it was not understood by the parties. It shows that there was a special agreement in regard to the summer-fallowing to be done during the season of 1916. This was quite a large amount of work, a season’s plowing of 500 acres, and the writing, in any event, should have specified at whose expense it was to be done, instead of being left out. As we understand the document, instead of the oral evidence contradicting its terms, it merely supplies a portion of the agreement which was not reduced to writing. The imperfection of the instrument, a part of which is admitted, lessens its evidentiary force and value. The writing is not the contract. It is merely evidence thereof.
It is inconceivable that N. K. Bott, a young man just starting on a business venture of five years’ duration, should assent to doing extra plowing and cultivating to the amount of about $2,500 when he was to get no part of the crop prepared for, without talking the matter over with his prospective landlord. It was perfectly in keeping with the usual business methods that
“It is therefore settled that in the suits, whenever permitted, to reform a written instrument on the-ground of a mutual mistake, parol evidence is always, admissible to establish the fact of the mistake, and in what it consisted, and to show how the writing should be corrected in order to conform to the agreement which the parties actually made. * * The court may grant relief upon the strength of the verbal evidence-alone. * * The authorities all require that the parol evidence of the mistake and of the alleged modification must be most clear and convincing, in the language-of some judges, ‘the strongest possible,’ or else the-mistake must be admitted by the opposite party; the-resulting proof must be established beyond a reasonable doubt. Courts of equity do not grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of evidence, but only upon: a certainty of the error.”
In Smith v. Interior Warehouse Co., 51 Or. 578, at page 581 of the opinion (94 Pac. 508, 509, 95 Pac. 499), it is stated:
“There can be no dispute as to the law that equity will entertain jurisdiction to reform a contract on the*479 ground of mistake; but, to entitle plaintiff to such' relief, tbe mistake must be shown by satisfactory proof, and that it was mutual: Stein v. Phillips, 47 Or. 545 (84 Pac. 793).”
When a mistake or imperfection of a written instrument is put in issue by the pleadings, oral evidence of the agreement as actually made is permissible under Section 713, L. O. L., as between the parties or their representatives or successors in interest.
Let us contract the clause in regard to the work during the last year with the following specifications found in the latter part of the lease:
“The party of the first part agrees to furnish at the town of Helix all posts and wire necessary to keep the fences on the premises in a good state of repair; it being understood that the party of the second part is to furnish the labor without expense to the party of the first part.”
It is easy to conjecture the reason for such an exact stipulation in relation to an outlay of a very few dollars and a little labor in repairing the fences each year when a matter of plowing and cultivation at an expense of some $2,500 for a crop to be raised after the lease would expire is couched in a dozen words. The clause in regard to fencing is very common, and it was handy for an amateur to obtain a form for the same, while it was necessary to write the agreement in regard to the work of summer-fallowing as an original, without the assistance of a form.
It follows that the decree of the lower court should be affirmed; and it is so ordered. Affirmed.