The record-union., 1891-03-09

| TIE ldIitlTe OI The ueIenQ1nl 10 correct the
mistake of the plaintiff, known to or sus-
pected by the former, at the time of the
execution of the lease. This is all that is
required by Section 1899 of the Civil Code.
| (HigginS VS.. Parsons. Is Cal. $50; Cleg-
| horn VS.. Zumwalt, SO Cal. 1867
There is nothing inconsistent with this
| in the law of the case as laid down on the
former appeal. az Cal. 596.) That ap-
peal was from a judgment for defendant
on demurrer to the original complaint,
which prayed for, only, q reScission of the
lease; and it was merely decided that the
complaint was sufficient. After the cause
was remitted, the plaintiff amended her
prayer by asking the alternative relief of
! revision of the lease in case q reScission
should be denied. The complaint con-
talns several averments not essential to
this alternative relief: and. among them,
inadequacy of consideration and weak
| mindedness of the plaintiff. If plaintiff
only intended to lease her property for a
term OF five years, instead of twenty
years, and the defendant knew or sus-
| pected her true intention, it is quite inn
| material, for the purpose of merely re-
forming the lease, on the ground of mis-
take, that the plaintiff was not weak
minded, and that the monthly rent re-
served was an adequate consideration for
lease of twenty years. (Higgins VS..
Parsons and CleohOrn VS.. Zlmwalt,
sgpro.)
For the purpose of testing the suf-
ficiency of the findings the case should be
regarded, simply, as Il case to reform the
lease under Section 1899 of the Civil Code
on the ground of a mistake of the plaintiff
known or suspected by defendant. In
this view OF it, all the objections on the
ground of insufticiency of the findings
not heretofore considered appear to be
irrelevant.
3. Appellants counsel contend that
''the code provision (Sec. 1899 G. C.) was
! not framed to benefit the indifferent, or
those who are grossly careless, and must
be construed as requiring the exercise of
at least ordinary cars;' and, therefore,
that relief should be denied the plaintiff
on the ground of her neglect to give such
ordinary attention to the reading Of the
lease by the notary as would have en-
abled her to understand its contents. In
support Of this point the cases of Hawkins
VS.. Hawkins 90 Cal. 55S) and Metropoli-
tan Lean Association VS. Esche rs Cal.
OBJ are cited. Neither of these cases is
IN point. The former was an action to
avoid written contract on the ground
that the plaintiff was induced to SIGN il by
false representations of tho defendants,
that 1T was like the verbal agree
ment' which preceded it, and
winch 1t was Intended to replace,
the defendants knowing that the written
contract was not like the verbal agree
meht; and the plaintiff, believing
such representation of defendants to be
be true. signed the written contract with
out reading il, although he had full
opportunity to do so. The lower court
sustained a general demurrer to the COM
plaint, and this was affirmed on appeal.
The complaint made neither a case of
mutual mistake, nor a ease of mistake of
one party which the other knew or sus-
pected. The defendants were not mis-
taken, and II was not alleged that they
knew or suspected any mistake on the
part of the plaintiff. The object of the
actlon was TO annul q contract, simply on
the ground of such actual fraud as in
duced mistake on the part of the plaint-
1T, which the defendants were not al
legged to have known or suspected. So,
In the latter case, when the defendants by
cross-complaint sought to reform the
bond on which the suit was brought, on
the ground OF mutual mistake of the par
ties, it was found that there was no mis-
take on the part OF the plaintiff; neither
was there any averment, finding or pre-
tense that the plaintiff knew or sus-
pected any mistake on the part of the
defendants.
4. AS another distinct cause of action.
the plaintiff alleged that some time after
the execution of the written lease, and
While she was still ignorant that it was a
lease Tor ten years, instead of five years.
she was induced by defendant to add an
additional story to the leased house, and
TO make other improvements, at a cost of
$500, in addition to the improvements
required by the lease; and that defendant
verbally promised to paw a reasonable
rent for such improvements, in addition
to the rent reserved by the lease: that
when these. Improvements were COM
pleted, on or about January 5. 1888. the
plaintiff endeavored to agree with defend
ant as to the increase of rent on account
OF sad improvements, but defendant re-
tional rent for said improvements.
although the rental value of the property
was thereby increased $3.50 per month,
The prayer as to this cause of action is
that the lease ''be so amended and re,
formed as to carry out the subsequent
agreement with reference to the addi-
tional improvements put upon the prem
.iscs, and to provide that the amount of
monthly rental shall be increased SO as to
include reasonable rental on account of
said improvements, to-wit. the sum Of
Sl50 per month"
The defendant denied that he induced
the plaintiff to make these additional ini-
provements, Or that he promised to paw
any additional rent therefor.
The court expressly declined to find
upon the issue of fact as to these improve
ments, for the reason that this court con-
siders and adiudges the same to be inma-
terlal and not proper matter for adjudica-
ton in this case;' and, as conclusion of
law, further said: 1.-The court does not de-
eide whether or not the plaintiff is en-
titled to recover from the defendant any
additional rental for additional improve
ments made upon said premises by
the plaintiff after the execution of said
lease described in the complaint, and the
court decides this case without prejudice
to the rights of either plaintiff or defend.
ant in the matter of said additional i'm
provements."
Counsel for appellant insist that the
court erred in thus disposing of this
branch of the case relating to the addi-
tlonal improvements.
1t will be observed that this branch of
the case has no connection with the lease,
or with the cause of action to reform the
lease, as it is founded upon an,alleged
subsequent parol agreement to pay rea
sonable rent for improvements adai-
tional to those required by the written
lease, and not upon any agreement or
promise to reform or alter the written
lease. Nor does the Judgment reforming
the written lease, in any degree, depend
upon the alleged subsequent agreement
as to additional improvements and rent
therefor: nor upon any fact alleged or
denied in relation thereto. Therefore, it
would not be necessary or proper to
reverse the Judgment reforming the
written lease for any error (conceding
there was error in disposing of the dis
tinct cause of action resting solely upon
the alleged subsequent agreement. 1t
would seem that the effect of the action of
the court was dismissal of the alleged
cause of action based on the subsequent
agreement, without prejudice to the rights
OF either party, for the reason that the
court considered ''the same to be imma-
terial, and not proper matter for adjudica-
uon III the case" 1t is notquite clear