Bott v. Campbell

• Decision Date: 09 January 1917
• Citation: 161 P. 955,82 Or. 468
• Parties: BOTT v. CAMPBELL ET AL.
• Court: Oregon Supreme Court

161 P. 955

82 Or. 468

BOTT v. CAMPBELL ET AL.

Supreme Court of Oregon

January 9, 1917

In Banc.

Appeal from Circuit Court, Umatilla County; G. W. Phelps, Judge.

Suit by N. K. Bott against Harriet Campbell and others, for the reformation of a lease. Decree for plaintiff and defendants appeal. Affirmed.

The plaintiff in this suit seeks to reform a written contract. From a decree in his favor defendants appeal.

On September 19, 1911, Charles H. Campbell was the owner of 1,120 acres of wheat land in Umatilla county, about 1,000 of which were in cultivation, approximately 500 then in summer fallow, and about 500 in stubble, from which a crop had been taken in 1911. Plaintiff, N. K. Bott, a young man, purchased of Mr. Campbell the farming outfit, consisting of horses and mules, machinery and implements, paid him $5 an acre for the work done in summer fallowing the 500 acres during the season of 1911, aggregating about $8,600, and on the date first mentioned leased the land for a term of five years and until September 19, 1916. In order to pay for the outfit and summer fallow plaintiff obtained a loan from his father, J. K. Bott. After there had been some negotiations between plaintiff and Mr. Campbell, and a few days before the transactions were completed, Mr. J. K. Bott, in the interest of his son, went with him to the premises of Mr. Campbell. They were accompanied by Mr. A. L. Grover, a neighbor for whom plaintiff had been working for a few years. Charles A Campbell, a son of the lessor, was about the place at the time, and his mother was in the house. Mr. J. K. Bott secured some reduction in the price of the personal property, and, as he and Grover state, the terms of the lease were talked over in their presence. Plaintiff asserts that the conditions of the lease as agreed upon were to the effect that plaintiff should cultivate, furnish seed, plant, and raise crops on one half of the wheat land and summer fallow and cultivate the other half each year, alternating the same, and pay as rental one-third of each crop delivered in the sack at the warehouse, and that during the last season, that of 1916 plaintiff should plow or summer fallow and cultivate the one-half of the land not then in crop for which Charles H Campbell agreed to pay him the customary or going price. Plaintiff further states that on the day the lease was executed, Charles H. Campbell, then a resident of Walla Walla, Wash., and Mr. N. K. Bott, of Helix, Or., met in Pendleton; that they went to the office of Mr. Leffingwell, a real estate and insurance man, for the purpose of having the lease drawn, and informed him of the agreement, and particularly that at the expiration of the lease, if the place was left in summer fallow, Bott was to be paid the customary price of the country for such work; that nothing was said about seed for the crop to be sown in the fall of 1916. The lease, which is in evidence, was written in duplicate by Mr. Leffingwell, read to the parties, and signed by them. Plaintiff deposited his copy in the First National Bank across the street, and Mr. Campbell took his copy with him. Upon being informed that the lease was executed Mr. J K. Bott gave Mr. Campbell a check for his son in payment of the personal property and the summer fallow then on the land. No other memorandum of the farming outfit or payment for the summer fallow appears to have been made, these matters not being mentioned in the lease. The evidence shows that plaintiff took possession of the personal property and farmed the land as agreed until about the first of the year, 1916 when a dispute arose in regard to the summer fallowing of the land during the season of 1916 and the furnishing of seed for a crop to be harvested in 1917 without pay therefor. Plaintiff then examined his lease for the first time since it had been read to him. Charles H. Campbell died in December, 1911. Mr. Leffingwell is now deceased.

In his complaint plaintiff sets forth the agreement as he claims it was made. He further alleges that the scrivener who drew the lease, a copy of which is attached to the complaint, "was told of all of the provisions of said agreement by both parties thereto, but" failed and neglected to correctly specify the full terms thereof, in this, that he failed to insert in the body of the instrument that the plaintiff should receive the reasonable market price for the work performed by him in summer fallowing the half of the tillable lands during the year 1916, and did inadvertently and erroneously provide in the lease that the plaintiff was to furnish all necessary seed to sow the summer fallow; that it was thoroughly and mutually agreed between the parties to the lease that plaintiff was to receive such pay for such work, and that he was not to furnish the seed to sow the summer fallow during the fall of 1916; that the lease was hurriedly read by the scrivener, and neither plaintiff nor Charles H. Campbell noticed or understood that the written lease contained any provisions to the contrary, "but both believed and understood said written lease contained the provisions so agreed upon." Plaintiff alleges that whatever provisions contained therein are contrary to the understanding and agreement so had between him and Charles H. Campbell were inserted therein erroneously, inadvertently, without the knowledge, and contrary to the understanding, of both parties, and contrary to the real agreement of lease and rental made and entered into between them "and without fault or negligence on the part of either"; that the defendants are contending for a performance according to a literal construction of the exact language used by the scrivener in the lease. Defendants, who are the heirs of Charles H. Campbell, deceased, deny the allegations of the complaint as to any mistake in writing the agreement.

Alger Fee and Jas. A. Fee, both of Pendleton, for appellants. Will M. Peterson and J. Roy Raley, both of Pendleton (Raley & Raley, of Pendleton, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

From a careful reading of the evidence we find, as did the learned trial judge, that the agreement was made between plaintiff and Charles H. Campbell as alleged in plaintiff's complaint; that it was mutually agreed between the parties to the lease that plaintiff should receive a reasonable compensation for the work to be done by him in summer fallowing that portion of the land which was not in crop during the season of 1916, and that it was not agreed nor understood that he should furnish seed to sow the summer fallow during the fall of 1916 for the 1917 crop; that by mistake of the scrivener the writing failed to express the contract as made. The terms of the lease were stated to the plaintiff by Mr. Charles H. Campbell when the former was first at his place for the purpose of renting the land and purchasing the personal property. Defendant Charles A. Campbell testified to the effect that he was present during the preliminary negotiations on the front porch and also at the time of the second conversation, when Mr. J. K. Bott and Mr. Grover were there. As to what was said at the second meeting about the lease, he stated:

"The lease was to be made for five years and they were to give one-third of the crop in the warehouse; they agreed to the whole substance of it."

To the question: "Was there anything said at that time about the terms of it that you recall?" he answered, "No, sir." He further stated the substance of the conversation about the equipment, and that that was the extent of the conversation there that day; that he was present all the time when Bott was there with his faher. On cross-examination he testified in part that a few days before the lease was drawn this conversation was held--

"around the place, part of it in the house and part of it around the machine shed and barn; they walked around. Q. Was there anything said about the general terms of the lease of the farming lands? A. No, sir. Q. Where was that discussed about the farming lands? A. About the terms of the lease, it was discussed a few days before that when Mr. N. K. Bott came down to see about renting the place. Q. But on that date what was discussed, or was anything said about the lease that day? A. There was nothing said about the lease at all that day. Q. Was anything said at all about the farming lands that day when Mr. Grover was there? A. No, sir; it was all about the outfit that was talked about that day."

The witness stated that if the summer fallow was mentioned it was somewhere else; that about a week before this time, when N. K. Bott was first there, the conditions of the lease (as above stated) were mentioned, and "there was nothing said about the summer fallow; he bought the summer fallow at $5 an acre and that is all...