The record-union., 1891-03-09
Titled March 4, 1871
DEPARTMENT TWO.
No. 1921.

BRIDGET WILSON,
Respondent,
VS.. No. 1881.
JOHN MoRIARTY,
Appellant.
This is an action TO rescind written
lease by plaintiff to defendant of a lot and
house thereon in the city of Los Angeles,
on the ground of alleged fraud on the part
| of the defendant in procuring the lease:
or, II o rescission thereof cannot be had,
that the lease be reformed on the ground
OF alleged mistakes Of the plaintiff, which
the defendant knew ut the time the lease
was executed.
The. court denied q rescission OF the
lease, bat reformed it. From the judg-
ment reforming the lease, and from an
order denying his motion for a new trial,
the defendant brings this appeal.
Enc lease, as executed. was for the
| term OF ten years, at IL rental of $50 per
month, with the privilege of a renew al
| Tor another term of ten years at the same
rent. AS reformed the lease is for the
term OF only five years, and without the
privilege of renewal FOR any term.
! The ultimate facts upon which the re-
| vision OF the lease was based are eX-
| pressed in the si:;th tihding OF the court.
rs follows:
THAT when plaintiff executed said
lease. she did not understand said
|
privilege OF ten years more, but she
understood said lease to be for single
term of five years. And the defendant
then and there, at the time of the execu-
+ ton OF said lease by plaintitf, well knew
Ethat the plaintiff did not understond the
FSanc TO be for ten years, with the priv
]lege OF renewal and we'll knew that she
understood the same TO he for single
term Of five years, and tie defendant
| fraudulently induced the plaintiff to
understand said instrument, and to exc
/ cute the same under such miSunderStand-
| ing.n
/ These facts. If justified by the evidence.
undoubtedly support the Judgment. Sec
ton 1859 Of the Civil Code provides, that,
when through mistake
| Of one party, which the other, at the time,
! knew or suspected, Il written contract
does not truly express the intention of
the parties, it may be revised on the ap-
piication of a party aggrieved, so as to
| express that intention, so far as il can be
! done without prejudice 20 rights acquired
| Dy third persons, in good faith and for
| value"
I But counsel for appellant contend that
the finding of the facts above quoted is
not justified by the evidence.
| The court found as eVidentiarv facts
which are not disputed, that the plaintiff
is unable to read or write; that the de-
/ fendant is q shrewd merchant and busi-
ness man of plausible manners, and was
on terms of friendship with the plaintiff
and her husband-John Wilson; that the
defendant drew the lease; and, that the
lease was not read to or by the husband,
or read to the plaintiff except by the no.
tary at the time she acknowledged it.
The testimony ofthe plaintiff and her
| husband was to the effect that during
three or four months before the execution
OF the lease the defendant had been i'm
| portuning them for a lease of the prop
| erty for term of five wears: that plaintfff
! was unwilling to lease the property for 4
longer term than two years; that the de-
| fendant finally persuaded the husband to
advise the plaintiff to execute lease for
the term of i've years, which he did, on the
ground that the defendant would be good
| tenant, with whom they would have no
| trouble in collecting rent: thereuDon the
plaintiff consented 10 the term of five
years; that after the defendant drew up
the lease he met the plaintiff on the street
near her husbands blacksmith shop and
requested her to go with him to the
notary's office and acknowledge it, and
her husband then told her to Gio so, but
did not accompany them; when they
arrived at the notary's office the defend
ant offered to read the lease to her, SAYING
it was in his handwriting but the notary
said the law made it his duty to read the
instrument to her, as she was a married
woman, and he did then read it to her:
but believing that the defendant had
drawn the lease according to the agree
ment, and that she already knew that it
was lease for the term of five years
only, she did not give sufficient attention
to the reading OF the notary to discover,
and did not discover, thaf.it was a lease
for ten years, or that it differed from the
lease heretofore agreed upon; and that
when she acknowledged the execution
IlndnrStnN6 70, io
lease for the term of only five years with
out any privilege of renewal
Thomas Leahy testified that about two
years before the trial the defendant re-
quested him to 60 to John Wilson and
try to get lease Of the property to de-
fendant for the term of five years: that
witness went to Wilson and tried to per-
suade him to give the lease for five years,
but Wilson said: "No, will not give it
for five years; l will give it for three"
Witness reported Wilson's answer to
defendant
Michael Leahy testified that he "went,
at Moriarity's request, to Mr.. Wilson, to
see if he could get lease for ten wears.
and Mr.. Wilson said he would not give it
for SO long. 1 took that answer back to
him.
H. Boettcher testified that in March,
1887, the rental value of the property as
leased to defendant was $3.50 per month
". It COiidut leStlueu tildC he ndu Deen
a collector of rents for about six years
and knew the rental value of the property,
and that the rental value of the building
in March, 1887. would be something like
$3.50. After the building was remodeled
and put in shape as it is now, the store
room would have brought about $500 per
month at least. / don't know how many
rooms there are i'll the two upper floors,
but they would have brought from IS to
$40 a room, taken as a whole" ct is
stipulated that there are twenty-one
rooms on the two upper fioors). There is
no other evidence as to the rental value of
the property than that of these two wit
nesses. This testimony as to the rental
value of the property is cited, and con-
sidered relevant for no other purpose
than SO far as it may tend to show de-
fendant's motive for desiring a long term
at the rent reserved in the lease.
The defendant testified that he never
represented to plaintiff or to her hus-
band, that the lease drawn by him was
for the term of five years, but that he
drew the lease according to an under
standing oragreement had with the hus-
band, which the husband was to advise
the plaintiff to accept; but he does not
testify that the plaintiff ever agreed to a
term of ten years, or that she was ever
informed that the lease drawn by him
was for term of ten years, unless she
understood the reading thereof by the
notary. Nor does he testify that the hus-
band ever read or saw the lease drawn
by him, or that he ever informed the
husband that it was for term of ten
years, but merely that he drew the lease
according to previous agreement with
the husband, which agreement the hus-
band, in his testimony, denies.
Under the settled rule of this court as to
conflicting evidence in cases of this kind,
think the finding, as to plaintiffs mis-
take, should not be disturbed. The miss
f.lx 1ai,, ;cLn "a u