Great Atlantic & Pacific Tea Co. v. Engel Realty Co.

• Decision Date: 22 May 1941
• Docket Number: 6 Div. 790.
• Citation: 2 So.2d 425,241 Ala. 236
• Court: Alabama Supreme Court
• Parties: GREAT ATLANTIC & PACIFIC TEA CO. v. ENGEL REALTY CO.

2 So.2d 425

241 Ala. 236

GREAT ATLANTIC & PACIFIC TEA CO. v. ENGEL REALTY CO.

6 Div. 790.

Supreme Court of Alabama

May 22, 1941

Section 6 of the bill (the last paragraph of which was added by amendment) is as follows:

"Complainant avers that in the preparation and signing of said written lease hereto attached and made a part of this bill of Complaint, and by mutual mistake there was caused to be and remained in said lease the following clause:

"The Lessee reserves the right to terminate this lease by giving the lessor written notice thirty days in advance of the date the lessee desires to cancel the same."

"When in truth and in fact Minnie Norris, the owner, instructed the complainant, her agent, that said clause could not be or remain in said lease and your complainant did confer with the authorized agent of the respondent and did enter into an agreement with the respondent that said clause should be stricken from said lease in accordance with the instructions of the owner. Complainant avers that in the lease of the previous year from, to-wit: the first of September, 1937, to the 31st of August, 1938, on the above described property, and between Minnie Norris and the respondent, that by agreement a similar clause was stricken and marked void, and likewise, in the lease between said parties running from the first of September, 1936, to the 31st day of August, 1937, that a similar cancellation clause was marked void. It being the agreement and intention of the parties that the lease contract should be for a period of one year without a cancellation clause in the same. Complainant further avers that respondent did prepare the lease on said premises on printed forms prepared by respondent, and forwarded the same to the Engel Realty Company, as agent of Minnie Norris, and that said lease did contain the clause herein above set forth and before said lease was signed that complainant informed the duly authorized agent of the respondent that Minnie Norris would not sign said lease or authorize the agent to enter into a lease containing said cancellation clause as above set forth, and that respondent did agree that said clause should be marked void as it had been in the previous years, and it was the agreement and intention of the parties that said clause should be stricken from said contract lease, but through mistake and inadvertence said clause was not marked void, and the Engel Realty Company, a corporation, did sign said lease as agent for Minnie Norris and forwarded the same to the respondent with the cancellation clause contained therein, not having been marked void, and the respondent did execute said lease returning the copies of same to the complainant, which copies were duly filed away by the complainant and that Engel Realty Company, as agent for Minnie Norris, the owner of said property, and Minnie Norris, did not know that said clause had not been cancelled or marked void in said lease in accordance with the agreement and intention of the parties until they received the notice from the respondent, on to-wit: the 15th day of February, 1939."

"The complainant, Engel Realty Company, avers that said lease contract as written and issued contained a mutual mistake of fact of the parties thereto as herein averred or a mistake of fact as herein averred of complainant and Minnie Norris which the respondent at the time it executed said lease knew or suspected and remained silent and would not inform complainant or said Minnie Norris of such mistake, and complainant further avers that the agreement to strike said cancellation clause from said lease was made by Complainant as Agent for said Minnie Norris, and the respondent after the respondent had written and prepared the said lease as aforesaid but before it was signed or executed by any of the parties thereto."

J. L. Drennen, of Birmingham, for appellant.

Kenneth Perrine and Frank Bainbridge, both of Birmingham, for appellee.

GARDNER Chief Justice.

The final decree, from which this appeal is prosecuted, reformed a one year written lease of a store house owned by Minnie Norris, so as to eliminate therefrom a clause reserving to the defendant lessee the right of cancelation upon thirty days' notice. The lease was prepared by the lessee, as had been the custom, and in the two previous years the lessee Tea Company (to so abbreviate) had inserted this same cancelation clause. Objection was each time interposed and the clause eliminated. It was again inserted in this last lease, the one here in question and the lease forwarded to the agent Engel Realty Company for execution.

The proof for complainant is to the effect the Realty Company at once notified the Tea Company this clause was objectionable and its elimination was a prerequisite to the signature of the owner of the property, and that it was readily agreed between Mendel for the Realty Company and Black for the Tea Company that the clause be stricken from the lease. Mendel stamped out other objectionable clauses and was of the opinion he had likewise eliminated this clause. But it developed he had negligently failed to do so and returned the lease to Black with no change in that respect.

If in fact it was agreed between these parties that, before signing, the lease should stand corrected by eliminating this clause, and by inadvertence this was neglected, the contract did not express the true intentions of the parties and it was subject to reformation as for a mutual mistake.

Ballentine v. Bradley et al., 238 Ala. 446, ...