Turner v. Hartog

BEAN, J. 1. We approve the finding of the trial court as to the number of acres which is admitted to be 1,736.42 according to the survey made. Taking as receipts some of the canceled checks used in paying the rent, there is no question that a receipt can be contradicted. The letter of J. H. Hartog, the manager of the Willamette Yalley Irrigated Land Company, dated April 16, 1912, stated, “we are willing to pay the $3 rental for the actual number of acres we have under option,” and urged that plaintiffs abide by the survey then to be made. The terms of the leases expressly provided that the lessee should hold the premises from December 22, 1910, until October 1,1914. The controversy in regard to the time is from October 1 to December 22, 1910. The dates are plain in the leases and the lessee paid for the first six months from December 22d to June 22d. The parties, therefore, put their own construction [481] upon the agreement. From the writing and from the evidence it appears that the plan was for the Irrigation Company to improve the land and sell the same under the terms of the options contained in the leases. It would seem that this was the main part of the privileges for which the consideration was paid. The time for which the consideration or rent is claimed had already elapsed when the instruments were executed. It is not shown that the lessee understood or agreed to pay for the privilege during a time for which it was not granted. The land was subleased and the leases existing at the time of the execution of the agreements in question were taken over by the defendants. Plaintiffs collected a small portion of rent from a former lessee for the time for which the claim is now made. According to the assertion of defendant Hartog the subtenants to whom the land was sublet paid as rental about one third of the consideration paid by the optionee. No agreement appears to have been made as to what portion of the stipulated sum should he paid as rent and what part for the option. To change the time of the lease would in effect he making a new contract for the parties. Whatever the lessors understood in regard to the matter it is clear that the minds of the lessors and lessee never met on the proposition of a lease for the full term of four years. It is well settled in this state that, in order to reform a contract on the ground of mistake, it must be alleged and clearly proved that the mistake was mutual, and that it does not suffice that one of the parties understood the contract should he one way, and a different understanding was entertained by the other party: Suksdorf v. Spokane P. & S. R. Co., 72 Or. 398, 401 (143 Pac. 1104); Smith v. Interior Warehouse Co., 51 [482] Or. 578 (94 Pac. 508, 95 Pac. 499); Hughey v. Smith, 65 Or. 323 (133 Pac. 68). The defendants answered to the merits and no question is raised as to the jurisdiction of a court of equity to determine the controversy. The decree of the trial court will therefore he modified so as to exclude the-requirement for the payment for the leases and options from October 1 to December 22, 1910, and deducting the sum of $1,157.60, thereby reducing the amount to which plaintiffs are entitled to the sum of $394.40. The trial court heard all the particulars and allowed neither party costs. Each party will pay his own costs in this court. Modified. McBride, C. J., Moore and Burnett, JJ., concur.