— Three causes of action as shown by the caption of this appeal were consolidated for the purposes of trial.
Subsequеntly to the commencement of the two actions by the landlord Costello, and while said actions were pending, the tenant Welder filed his petition in which it' is recited that the defendant Costello clаims some right, title or interest by reason of a landlord’s lien in the sum of $1,633.92, which sum represents the value of certain grain sold by the plaintiff to the Stokely Grain Company. Plaintiff also avers that the defendant Costеllo “has been fully paid for any account between the plaintiff and the defendant Costello,” and therefore prays judgment against the Stokely Grain' Company in the sum mentioned.
For answer to the petitions of the plaintiff herein and by way of counterclaim defendant Welder presents an equitable issue, and prays for the reformation of the lease entered into between him and his landlord. It is alleged by the defendant tenant that:
“During the negotiations and at all times represented to the defendant that he [plaintiff] would drain or cause to be drained a certain 70 acres of said premises that were wet and unfit for cultivation, as an inducement for the defendants to enter into said lease; and that at the time the said lease was executed, by mistake of the parties to sаid lease, the said particular 70 acres were not described and the representations as to. draining the same were omitted from said lease with the exception that there was inserted and indorsed on. said lease the following: 'Second parties [tenant] agree to haul all tile and fill all the ditches without charge, for all tile work performed during this lease. Second parties agree to board all men hired by the first party for 35 cents per meal, and to furnish all lodging without charge. ’ ”
It is further alleged that the landlord failed to drain the said 70 acres as he had promised so to do before corn planting
Upon the consolidation of the three cases for the purposes of trial the court indicated that the issue in equity as presented by the counterclaim of the defendant Welder would first be determined and with this understanding the cause proceeded to trial. The court found in favor of the defendant Welder and decreed the reformation of the lease leaving all other issues for the determination by a jury.
If a contract as written fails to express the true agreement between the parties, equity will grant relief without regard to the cause of the failure to express the contract as actually made, whether it is due to fraud, mistake in the use of the language, or any other thing which prevented the expression of the true intention of the parties. Coleman v. Coleman,
To authorize a reformation there must be shown “such a degree of proof as will produce in an unprejudiced mind the belief and the conviction of the truth of the fact asserted taking into consideration all the surrounding facts and circumstances. ’ ’ Rensink v. Wiggers,
In eases of this character the so-called parol evidence rule finds no application and it is competent to show the conversations and the surroundings of the parties to the contract prior to its execution. What was said prior to the execution of the contract was an inducement for its execution, and it is so alleged. The primary object is to have the contract express the real agreement and if the evidence is such that the unprejudiсed mind “readily reaches a satisfactory conclusion as to the existence or nonexistence of a fact in dispute then the evidence is of necessity clear and _ satisfactory. ” Good Milking Machine Co. v. Galloway,
A court will not write a contract for the parties in the first instance, and if all the facts in the execution of the contract were equally within the knowledge- or the means of knowl
Does the evidence in this case disclose sufficient ground or reason to warrant a court to reform the instrument? The farm in question contained 243 acres of land. It was leased at $15 per acre. The landlord claims that he had never seen Welder prior to their meeting in the back room of the. bank in Woodward where the lease was executed, аnd prior to that time he states he had no discussion with Welder and did not talk about the terms of the lease except such as were had when the lease was drafted. This does not sound reasonablе. Welder and his wife testify that they arranged for a meeting with Costello and first met him on one of the streets of Woodward and then and there had conversations as to the rent and also about tiling the wet land. Welder claims that the tiling of the 70 acres was then and there discussed and it was mentioned that there was some unplaced tile on the land which tiling had been hauled by a former tenant. In effect the lаndlord told the tenant that he would not have much tile to haul, “but you will have to fill the ditches.” If Welder’s testimony is to be believed the whole matter was agreed to before they met the second time in the bаnk when the lease was executed, and Welder stated that at their' first meeting and after a discussion of the matter Costello said: “I will put it in the lease.” These conversations had reference to the 70 acres of wet land on this farm and it is shown by the evidence that by reason of the character of the land it was impossible for the tenant to use the 70 acres during that season. In March the landlоrd visited the farm and his attention was then called by Welder to the tiling that was agreed to be done as claimed by Welder and Welder states that Costello told him that he .(Costello) would see a couрle of men including one William Fall who were tilers to do this work and that it would not be necessary for Mrs. Welder
We are not impressed with this explanation. The language used in the lease is indеfinite and uncertain. There is no doubt but what Welder understood that the 70 acres in question was to be tiled that fall or before the planting season of 1920. Welder had inspected the farm prior to his meеting Costello. Both parties knew the condition of this particular acreage and it may not be said that after the drafting of the lease by the scrivener under the dictation of Costello that Welder was called upon to give a critical examination of the terms of the lease in the light of the understanding previously had. Welder could easily understand his obligation as written and as easily understand the obligation of the landlord in the light of prior conversations and agreements. Had the lease read “If any tiling on the farm is done, then party of the second part agrees to haul etc,” Welder would have understood that all tiling was at the option of the landlord. Welder had good reason to believe that their understanding was embodied in the lease. Welder and his wife are not educatеd people. The trial judge had all the parties before him. It is apparent that the defendant Welder attempted to conceal nothing. His answers are reasonable and consistеnt with the situation;
We are satisfied that the true intent of the parties in the execution of the lease was to tile this particular 70 acres so as to make it tillable and productive. The evidenсe establishes the contention of the appellee tenant and we are not inclined to disturb the finding of the trial court. The cold printed record does not speak as audibly nor as convincingly as the witnesses who were before the trial court. The purpose in reforming a contract is to effectuate justice and to express the true intention of the parties. The circumstаnces prior to and attending the execution of the lease possess as much probative value as the