Opinion
01-30-1909
LESSER et al. v. DEMAREST.
J M. Enright and McDermott & Enright, for complainants. J. Merritt Lane and Ziegner & Lane, for defendant.
Suit by Kaufman Lesser and others against Abraham J. Demarest. Heard on bill, answer, replication, and proofs. Decree for defendant.
J M. Enright and McDermott & Enright, for complainants. J. Merritt Lane and Ziegner & Lane, for defendant.
EMERY, V. C. This is a suit by the lessee to reform a written lease, on the ground of mistake, and, as is well settled, proof of mutual mistake is necessary. Green v. Stone, 54 N. J. Eq. 387, 395, 34 Atl. 1099, 55 Am. St. Rep. 577 (Err. & App. 1896); Herron v. Mullen, 56 N. J. Eq. 839, 42 Atl. 1016 (Err. & App. 1898). The evidence to establish mistake must, moreover, be clear and conclusive, as otherwise the court, by decreeing the reformation of a written contract, might make a new contract. The courts will not change what is written, upon loose, doubtful, or equivocal evidence. Hendrickson v. Wallace, 31 N. J. Eq. 607 (Van Fleet, V. C, 1879), approved in Morris v. Kettle, 56 N. J. Eq. 826, 834, 34 Atl. 376 (Err. & App. 1898). And on this question the denial under oath by the defendant that there was a mistake must itself be given considerable weight. Marquis of Townshend v. Stangroom, 6 Ves. 328, 334 (Ld. Eldon, 1801); Mortimer v. Shortall, 2 Drewry & W. 363 (Sugden, L. Ch., 1842); Fowler v. Fowler, 4 De G. & J. 250, 273 (Chelmsford, L. Ch., 1859). The lessor and lessees had no personal interviews previous to the lease, but Mr. Lesser, one of the lessees, made arrangements for the continuance of his lease with Mr. Roland, of Mullins & Cronin's office. Mr. Roland communicated with Mr. Elmer Demarest, the son and attorney of the lessor, and he in turn with his father, the lessor, and therefore, as I said at the hearing, the decision as to the matter of mistake must, in the first place, turn on the question whether it has been clearly and satisfactorily proved that Roland and the complainant Lesser both understood and intended that the new lease for five years should run from 1908, instead of 1907. Both these witnesses agree on the statement that complainant Lesser wished their new lease to run for the same period as a lease for property in the rear of the leased premises, which complainants were about leasing from one Kantrowich, and which they desired to use with the premises in question. Mr. Lesser testifies that he had arranged for this other lease to run until five years from the termination of his lease of defendant's property(in March, 1908), and that he proposed to Mr. Roland a new lease from defendant to run for five years after the expiration of the existing lease; but Mr. Roland's recollection is that Mr. Lesser told him he had rented the Kantrowich property for five years from the 1st of May, 1907, and wanted a new lease to coincide with this term, and he says that he so told Mr. Demarest the younger. Both the Demarests say that they understood the proposal to be for an extension of five years from 1907, and, an increased rental being also agreed on, the new lease was executed about October 26, 1906.
This lease, after reciting that the lessees "are now tenants under lease terminating May 1, 1907," declared that the landlord let and the tenant took the premises "for the term of five years beginning on the 1st day of May, 1907, at the yearly rental of $540, payable in equal monthly installments of $45 each, in advance, on the 1st day of the month." In the clause thus fixing the term of the lease, there is no reference to the termination of the existing lease, and although the existing lease, if it ran to the end of the term, expired in 1908, and not in 1907, the question as to mistake is whether the lessor, in executing the new lease, intended the term of this new lease to end five years from May 1, 1907, rather than 1908. Neither Mr. Roland nor Mr. Lesser produced the existing lease or had it with them at the time of their conversations, and both the Demarests say they had expressly in mind that the term to be granted was for five years from the following day. In reference to the recital, Mr. Elmer Demarest, the attorney who drew the new lease, says that he supposed the new lease running from May 1, 1907, terminated the existing lease at that time, and that this was intended. The original lease terminated May 1, 1905, but was continued under an option for three years, contained in the lease. Whatever weight may be given to this explanation of the reference to the date of termination of the existing lease, the important question as to mutual mistake is whether the lessor had in his mind and intended to give a new lease for five years from the following May, and not for six years from that time, or for five years from May, 1908. If he did, and even if Mr. Elmer Demarest's explanation be rejected, then, although the recital was a mistake, the end of the term actually fixed by the new lease was not a mistake, but was what the lessor intended, and he did not in fact intend to give a lease for five years from the termination of the existing lease.
On further consideration of the whole evidence, and after carefully reading over the stenographer's notes of the evidence of Mr. Roland, I reach a conclusion confirming the view which I suggested at the hearing, viz., that the defendant, on the information received from Mr. Roland, supposed the new lease proposed by complainant was to run for five years from the following May (1907) and not for five years from May, 1908. This information may have been the result of a misunderstanding on Mr. Roland's part Such misunderstanding, when discovered, might give a right of rescission of the new lease, at the option of the lessee, on the ground of his mistake alone; but the lessee here refused this option when offered him, and insisted on a right to a reformation of the lease, claiming a mutual mistake. This right, so based, has not been satisfactorily made out.
One further comment should be made on an aspect of the case not referred to by counsel. The agreement of Mr. Lesser with Kantrowich for a lease of his premises was oral and was made before he visited Roland, and the written lease with Kantrowich was not made until November 1, 1906, five days after the new lease with defendant, and any difference between the dates of termination of the two new leases was therefore due to the carelessness or oversight of Mr. Lesser, who alone saw and signed both leases. The effect of reforming the lease so as to make the Demarest and Kantrowich leases end together would therefore be to relieve complainant Lesser from his double mistake, and solely on the strength of his own parol evidence. This aspect of the case furnishes an additional reason why the writing signed by the complainants should not now be changed without the most clear and satisfactory evidence that a mutual mistake has been made out.