206 Ky. 377 | Ky. Ct. App. | 1924
Opinion op the Court by
Affirming. ■
Appellant and appellee entered into a written lease contract, on January 23, 1922, whereby Winter let to Miller a certain building, or at least a part thereof, for a term of seven years (7) from that date, reserving a rental of $150.00 per month, payable on the first of each month. The premises let are described in the writing as follows: “Being the 1st, 2nd and 3rd floors of the Brook Hill building located at the intersection of Fourth and Broadway, and the same floors now in use by the Winter Hotel,” in the city of Paducah. After the written contract had been executed and delivered and Miller had taken charge of the hotel with the furniture and fixtures which he purchased at the same time, appellee Winter instituted this action for a reformation of the contract in this particular, the first floor stricken therefrom so that the description of the premises would read: “Being the 2nd and 3rd floors of the Brook Hill building,” &c., on the ground of oversight and mistake of the parties in the execution of the writing, alleging that the contract was for the second and third floors only and not for the first floor, but by oversight and mistake of the parties in the preparation of the writing' the premises were described as “being the 1st, 2nd and 3rd floors of the Brook Hill building,” etc., whereas, they intended and meant to include the second and third floors of that building only. No demurrer was filed to the petition, which was defective, because it did not allege a mutual mistake but merely alleged that by oversight and mistake of the parties the contract improperly included the first floor. Answer was filed on the merits, pleading that the writing expressed the contract of the parties and that there was no mistake in its execution. No reply was filed and the affirmative averments of the answer were not controverted.
After examining the petition and the answer we are constrained to hold that while the petition was defective
The evidence shows that there were several stores and shops on the first floor of the Brook Hill building, and that these shops and stores were rented on long-term leases, the rentals ranging from $85.00 to $200.00 per month. It further shows that appellee Winter had leased the property some years before from Mrs. Taylor at a monthly rental of $250.00 per month, for the entire building, Winter agreeing to pay ail taxes and to keep the building in repair at his own expense, giving to her $250.00 net, each month. It is also shown that the taxes upon this property which Winter agreed to pay amounted to about $1,200.00 per year, and that the repairs amounted to a considerable sum. When these facts are taken into consideration with the further fact that the contract in terms provided for the lease of the Winter hotel “the same floors now used by the Winter hotel,” and it appearnig that Miller sought only to lease a hotel and not other rooms, that the trial court properly held that by mutual mistake the parties to the contract embraced not only the second and third floors of the building but the first floor thereof when it was not contemplated that Miller should have the use of the first floor or the rentals arising from the tenants occupying the same. We think the mistake is proven by clear and
"While there, were several minor-errors in the practice of the case none of them prejudicially affect the rights of appellant upon the merits.
Judgment affirmed.