In 1994, Nikalaos Zaimis leased commercial premises from Anita Sharis. The first paragraph of the lease provided for a five-year term and an annual rent of $5,720, payable in equal weekly installments ($110). Paragraph 21 of the lease provided for an option to renew with the same terms “except that the monthly rent shall be the sum of $135.00.” Zaimis noticed the discrepancy two years into the lease, but said nothing. When the first lease term expired, Zaimis took the position that the lease called for a monthly rent of $135, not the weekly rent in that amount that Sharis claimed was due. Sharis sought reformation of the lease and the trial court, after a bench trial, granted that relief. Holding that the conflict between paragraphs 1 and 21 authorized the taking of parol evidence to ascertain the intent of the parties, the trial court heard evidence and found as a fact that the parties intended the rent to be $135 per week in the second term of the lease and that the failure to change the preprinted lease form to substitute “weekly” for “monthly” was a scrivener’s error. Having ascertained the intent of the parties, the trial court reformed the contract to provide for weekly rent of $135 and entered judgment for Sharis for the arrearage. This appeal is from that judgment.
1. Zaimis contends the trial court erred in reforming the contract because a merger clause in the lease precluded the consideration of parol evidence and because the mistake was Sharis’s alone. Neither of those arguments is persuasive.
“Equity will not reform a written contract unless the mistake is shown to be the mistake of both parties. . . .” OCGA § 23-2-31. “The doctrine of merger is applicable where there is no evidence of mutual mistake . . . but it should not be used to bar consideration of probative evidence offered to show an alleged mutual mistake in [a] reformation case. [Cits.]”
Rasmussen v. Martin,
Equity may intervene and reform a conveyance when the instrument fails to express accurately the intention of the parties. [Cit.] “ A petition for reformation of a written contract will lie where by mistake of the scrivener and by oversight of the parties, the writing does not embody or fully express the real contract of the parties.’ ” [Cit.] The cause of the defect is immaterial so long as the mistake is common to both parties to the transaction. [Cit.] And the negligence of the complaining party will not defeat his right to reformation if the other party has not been prejudiced. [Cit.]
Curry v. Curry,
2. Zaimis contends that Sharis was not entitled to the aid of equity in reforming the lease because she came to the court with unclean hands. That assertion is based on Sharis’s alleged bad faith in failing to repair the roof of the leased premises. Although the evidence at trial showed that the numerous attempts made by Sharis to have the roof repaired had been ineffective, prompting the trial court to order Sharis to replace the roof, since the evidence did not demand a finding that Sharis had failed to do equity and was barred under
the unclean hands doctrine,
3. The trial court excluded from evidence as irrelevant testimony and exhibits relating to Zaimis’s dealings with Sharis’s husband regarding an equipment lease to which Sharis was not a party. Zaimis enumerates that ruling as error.
“Even though the admission of questionable evidence is favored, £ “the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” (Cit.)’ [Cit.]”
Piggly Wiggly Southern v. Snowden,
Judgment affirmed.