Kleinsorge v. Rohse, 25 Or. 51

Kleinsorge v. Rohse

25 Or. 51 | Or. | 1893

Opinion by

Mr. Justice Moore.

Does the foregoing lease express the intention of the parties to the contract, is the question presented by this appeal. To entitle a party to have a written contract reformed by a court of equity, the complaint must show that some relation of trust or confidence existed between the parties to it, or that there was fraud or misrepresentation, or that the means of knowledge as to the terms and conditions were not equally open and accessible to both parties: Archer v. California Lumber Co. 24 Or. 341, 33 Pac. 526. The complaint herein is founded upon the alleged fraudulent representations of the defendant, but does not allege that any relation of trust or confidence existed between the' parties. In Hawkins v. Hawkins, 50 Cal. 558, it was held that where the complaint did not allege that any relation of especial trust or confidence existed between the parties to the contract, or that the means of knowledge as to the terms and conditions of the writing were not equally open and accessible to both parties, a demurrer was properly sustained, f

Upon the question of misrepresentations by the defendant as to the contents of the lease, the plaintiffs do not testify that he or any other person told them that it, as prepared, contained all or any of the terms or con*55ditions agreed upon, and there is not one particle of evidence in the record to support the allegation to that effect in the complaint. The answer, however, having admitted that there was a mutual mistake in the description of the premises, makes it proper to consider the evidence for the purpose of ascertaining the terms and conditions of the contract agreed upon by the parties: 20 Am. & Eng. Enc. Law, 720, and cases cited. The evidence shows that the plaintiffs and defendant, as well as most of their witnesses, are Germans, and that the plaintiffs are old, and do not well undersiand the English language; that Mr. Kleinsorge went with the defendant to the office of Messrs. Rickard & Ohloff, neither of whom he was acquainted with, where Mr. Rickard prepared but one copy of the first lease at Mr. Kleinsorge’s dictation, and delivered it to Mr. Rohse. The date of its execution is uncertain, the plaintiff testifying that it was February fifth, eighteen hundred and ninety-two, while Mr. Rickard, who is not positive, thinks it was some time during the previous month. On the day of its date plaintiff F. Kleinsorge executed and delivered to the defendant an instrument, written in the German language, which being translated, reads as follows:—

“Fulton, Oregon, February 8,1892.

“I, the undersigned, testify hereby that the first monthly payment of twenty-five dollars between the fifth and twentieth of June begins for the year eighteen hundred and ninety-two between the fifth and twentieth, eighteen buudred and ninety-two; also no payments between the months in this year.

(Signed.)

“F. Kleinsorge.”

The plaintiff F. Kleinsorge testified that upon consultation with his wife, after the first lease was executed, they concluded that the defendant would be compelled to *56expend large sums of money in preparing the grounds for a concert garden, and that he could not derive any benefit therefrom until this work was completed, and that to aid and encourage him in prosecuting the work this instrument was executed. The defendant testified that the plaintiff, after the lease was executed, offered to pay him seventy-five dollars if he would permit Mrs. Kleinsorge to remain in the dwelling-house and use the small garden for the term of one year, to which he agreed, and that the receipt was given in settlement thereof, and that in pursuance of this agreement he placed gates in the high board fence for her accommodation, and allowed her “to occupy the house and garden for one year. The plaintiff further testified that when the defendant desired an extension of the term of. the lease, he sent Mr. Ohloff, whose partner had prepared the first lease, to see him about it, and that he told Mr. Ohloff he would not lease the house and garden, and that Mr. Ohloff, who is a surveyor, told him he ought to have the premises surveyed, but because of his lack of means it was not done; that' about two weeks after this request was made the defendant’s wife notified plaintiff that Mr. Ohloff had come to prepare a new lease of the property, and that he told the defendant and his wife that he would not lease the house and garden. The defendant admits that the plaintiff made this statement, but says he told the plaintiff at the time that he had no use for the property with them in possession of the house, and that this claim had been the cause of their previous trouble.

Mr. Ohloff testified that he copied the description from the first lease, and that, finding it insufficient, he requested the plaintiff to procure his deed, that he might correctly describe the property, but that both parties claimed that it was sufficient, whereupon he wrote it at the dictation of the plaintiff, who told him he was leas*57ing all the property to the defendant, and when it was completed he read it in English, and explained its terms. in the German language; that the plaintiffs thereupon signed it in the presence of the witnesses, and acknowledged its execution. A duplicate copy óí the new lease was then prepared and deli.ver.ed to Mr. Kleinsorge, and the old one destroyed by Mr. Rohse. Mr. Kleinsorge testified that he did not understand the terms of the lease when read by Mr. Ohlofif, and Mrs. Kleinsorge testified that she understood only that part of the lease which provided for the payment of rent. Some testimony was given which tended to prove that Mr. Kleinsorge intended, when he rented the property, to go to the mines, and that his wife was expected to live with a married daughter in Portland, Oregon. Several witnesses, most of whom were in the defendant’s employ, testified that Mr. Kleinsorge told them that he had rented the whole tract to the defendant. It also appears that Mr. Kleinsorge, after he had leased the property, worked about three weeks for the defendant, assisting him in building fences on the leased premises, for which he made no charge and received no compensation.

Grouping the facts and circumstances, we find the following in support of the plaintiff’s contention: The evidence of Mr. Kleinsorge as to the transaction; the fact that he leased four acres or less when he owned more; the circumstance that the defendant placed gates in the high board fence for Mrs. Kleinsorge’s accommodation, and permitted her to remain in possession of the house and garden; and that Mr. Kleinsorge, without any compensation therefor, worked for about three weeks assisting the defendant in addition to the donation of three months’ rent. Opposed to this we find the testimony of Prank Rickard that the first lease contained no reservation; that .the new lease provided for an increased amount of rent, *58contained no reservation, and the strong presumption that it expresses the intention of the parties; the testimony of Mr. Ohloff that no reservation was claimed by Mr. Kleinsorge at the time the lease was executed, and that he told him at that time he was leasing the whole' premises; the denial of the defendant, and the testimony of several witnesses that Mr. Kliensorge stated to thenT that he had leased to the defendant all his property; and the receipt for seventy-five dollars. The trial court, by seeing the witnesses and hearing them testify, certainly had a better opportunity forjudging their character, and the weight of their evidence, than this court can possibly possess from an inspection of the record, and yet we do not think the plaintiffs have established their case by the convincing evidence required in such cases, but, on the contrary, it affirmatively appears from the record that the equities are clearly with the defendant. The evidence does not show that Mr. Kleinsorge had reason to believe or did believe that Mr. Ohloff was acting as his agent, or stood in any confidential relation towards him, or that any misrepresentations were made to him by any person at the time the lease was executed.

2. Every written contract carries the strong presumption that it expresses the terms agreed upon between the parties to it, and ought not to be reformed, except when' it clearly and satisfactorily appears that there has been a mutual mistake, or a mistake on the part of the plaintiff, accompanied by fraud upon the part of the defendant, or by such acts on his part as would clearly be inequitable between the parties. Tested by this rule, we do not think the plaintiffs have made the necessary proof to entitle them to the relief sought, and for that reason the decree must be modified in so far as it gave the plaintiffs any reservation in the property leased, or restrained the defendant from occupying any part of it. Modified. .