Hammond Hotel & Improvement Co. v. Perrin, 14356.

• Decision Date: 31 March 1933
• Docket Number: No. 14356.,14356.
• Citation: 184 N.E. 906,96 Ind.App. 311
• Parties: HAMMOND HOTEL & IMPROVEMENT CO. v. PERRIN.
• Court: Indiana Appellate Court

96 Ind.App. 311

184 N.E. 906

HAMMOND HOTEL & IMPROVEMENT CO.

v.PERRIN.

No. 14356.

Appellate Court of Indiana, in Banc.

March 31, 1933.

Appeal from La Porte Circuit Court; Alfred J. Link, Judge.

Action by the Hammond Hotel & Improvement Company against Edwin V. Perrin, in which defendant filed a cross-complaint. From an adverse judgment, plaintiff appeals.

Affirmed.

W. J. Whinery, of Hammond, for appellant.

Crumpacker & Friedrich, Jay E. Darlington and Bernard A. Petrie, all of Hammond, for appellee.

SMITH, Judge.

This action grows out of a controversy concerning a lease from appellant to appellee upon the basement of a certain building in the city of Hammond, Ind.

The complaint is in one paragraph, and seeks to recover rent claimed to be due appellant from appellee. Later, a supplemental complaint was filed to recover rent which accrued since filing the original complaint. Answer was filed by appellee in two paragraphs-one, a general denial; the other, an amended third paragraph of answer, alleging mutual mistake in the execution of the lease.

Appellee also filed a cross-complaint in two paragraphs which was later amended and denominated an amended first paragraph of cross-complaint and a second paragraph of cross-complaint, both of which seek a reformation of the lease. It was charged by appellee in his first paragraph of cross-complaint that, by mutual mistake, the clause, “or the date when the said lessee obtains possession of the premises,” was omitted from the lease. In the second paragraph of cross-complaint, the appellee charges in effect that this clause was omitted from the written lease by the mistake of the appellee and on account of the unconscionable and fraudulent conduct of the appellant. The court found the facts specially. The conclusions of law thereon were stated against appellant, and judgment rendered accordingly.

It is upon these two paragraphs of cross-complaint that appellee seeks a reformation of the lease, by having incorporated therein the phrase above quoted.

The only error assigned and presented raises the question of the error of the trial court in stating its three conclusions of law. The exceptions to these conclusions of law, being three in number, are presented together by the parties, and will be so treated by the court in this opinion.

From the special findings of fact, it appears that appellant was the owner of a building in the city of Hammond and leased the basement thereof to appellee for the purpose of operating and maintaining a billiard parlor, bowling alley, cigar stand, and the serving of light lunches. On March 19, 1923, prior to entering into the lease, the parties by their agents entered into a written agreement which provided, among other things, for the amount of rent and the term of the lease. One of the provisions in the preliminary contract was this clause, “ Aggregating in all a tenancy of 15 years from September 1, 1923 or the date when the said lessee obtains possession of the premises.” (Our italics used throughout this opinion.) The portion of this written agreement which is in italics raises the whole controversy in this case.

Afterwards, on the 30th of March, 1923, the parties hereto entered into a written lease for the premises, from which there was omitted the clause contained in the preliminary contract, “ Or the date when the said lessee obtains possession of the premises,” as the time fixed for the beginning of the tenancy. The lease, as written, provided that the tenancy should be for fifteen years from September 1, 1923.

The original agreement provided that a written lease covering “the foregoing terms,” and the usual and general provisions of a lease, should be entered into and signed by the parties.

W. J. Whinery, who acted as attorney for the appellant, was secretary of the appellant corporation and prepared the preliminary agreement and lease.

The preliminary agreement as well as the lease provided that appellee was to pay rent monthly in advance at the rate of $400 per month for the first two years, $500 per month for the next four years, $600 per month for the next four years, and $700 per month for the remaining five years of said tenancy. In the preliminary contract, after this statement of the amount of rent, follows the statement, “Aggregating in all a tenancy of fifteen years from September 1, A. D., 1923.” Then follows the statement, “ Or the date when the said lessee obtains possession of the premises.” In the lease which was later executed, following the statement of the amounts of rent to be paid, is this clause, “Aggregating in all a tenancy of fifteen years from September 1, 1923,” and there is omitted from the lease, the clause, “ Or the date when the said lessee obtains possession of the premises.” When the preliminary contract and lease were executed, the premises to be occupied were not completed; the building being under process of construction. There was a supplemental agreement executed before the building was completed in which appellee was to pay $2,000 toward some additional improvements at the rate of $100 per month, which has nothing to do with the questions under consideration in this case.

The court specially found in its findings of fact that the preliminary agreement dated March 19, 1923, and prepared by William J. Whinery, “expresses and is, the true agreement of the plaintiff and defendant herein insofar as the beginning and duration of the term and tenancy between plaintiff and defendant and the rent payable by defendant incident to said tenancy, are concerned. That it was the intention and agreement of the parties *** that the terms and provisions of the preliminary agreement with reference to the beginning and duration of the term of the tenancy and the rent payable by defendant” were to be incorporated in the written lease thereafter executed.

The court further found that, when Mr. Whinery prepared the lease, he did not incorporate the provision contained in the preliminary agreement, namely, “ Or the date when the said lessee obtains possession of the premises,” but that said Whinery inserted in said lease other provisions which he “mistakenly believed to be the equivalent of and a correct expression of his own interpretation and construction with reference to the beginning and duration of the term of tenancy.” The court further found that the provisions inserted in the written lease by said Whinery with reference to the beginning and duration of the term, which were put in said lease in lieu of the provision contained in the preliminary agreement, “do not express the true intention and agreement of the parties herein.” The court further found that neither the appellee nor his attorney knew when the lease of March 30, 1923, was executed, that the provision regarding the beginning of the term of the tenancy as contained in said preliminary agreement had not been incorporated in the lease, and appellee did not learn that said written lease omitted said clause until on or about December 29, 1925, after he had been in possession of the premises over a year.

The special findings of fact show that appellee took possession of the premises as soon as they were...