Kanofsky v. Woerderhoff

• Decision Date: 10 March 1931
• Docket Number: No. 40606.,40606.
• Citation: 235 N.W. 305,211 Iowa 1175
• Parties: KANOFSKY v. WOERDERHOFF.
• Court: Iowa Supreme Court

211 Iowa 1175

235 N.W. 305

KANOFSKY

v.WOERDERHOFF.

No. 40606.

Supreme Court of Iowa.

March 10, 1931.

Appeal from District Court, Black Hawk County; A. B. Lovejoy, Judge.

This was a proceeding by the plaintiff to obtain as against the defendant, the following relief: First, an injunction (a) to restrain the defendant from barricading a door leading into the basement of a building in Waterloo, (b) to restrain the defendant from entering such door, and (c) to restrain the defendant from interfering with the rights of the plaintiff and his tenant in entering such door; and, second, the reformation of the lease held by the defendant for the basement room, so as to exclude from such contract the rear room, containing a coal bin, boiler, and heating plant, together with the right of ingress and egress. By way of answer, the appellant opposed the injunction and denied the right of reformation. The district court allowed the injunction and made the reformation. Consequently, the appellant appeals.

Affirmed.

C. W. Meek, of Cedar Rapids, for appellant.

Wenner & Mosier, of Waterloo, for appellee.

KINDIG, J.

This litigation primarily involves the defendant-appellant's right to use, under a lease, a small heating plant in the rear basement of the three-story Century building in Waterloo. It is claimed by the appellant that the lease grants him that portion of the basement which includes this heating plant. The lease, wherein Albert J. Warnke (appellee's grantor) was lessor and the appellant lessee, describes the property demised as follows: “The first floor (being the ground floor) and approximately the rear sixty feet of the basement thereof of the property commonly known and described as Number 611-13 Sycamore Street, the City of Waterloo, Black Hawk County, Iowa.” (The italics are ours.)

On the one hand, appellant claims that the words “approximately the rear sixty feet” include the heating plant which is located in the rear of the basement; while, on the other, the plaintiff-appellee urges that, in making the lease, the lessor, Albert J. Warnke, the then owner of the building, and appellant mistakingly failed to exclude the heating plant. Appellee's position is that the words “approximately sixty feet” did not mean exactly that distance, or in any event include the heating plant. Said sixty-foot space named in the lease, appellee argues, included a portion of the basement between a barber shop in the front of the basement and the heating plant in the rear thereof. Furthermore, it is appellee's thought that the use of the word “rear” in the lease was for the purpose of distinguishing that portion of the basement from the front part thereof in which was located the barber shop. A more detailed statement of the facts is essential at this juncture.

Said Century building is ninety feet long and thirty feet wide. There are three stories above the ground and a full basement beneath. In the front basement there is the aforesaid barber shop, entered from the sidewalk level. Likewise, from the same sidewalk level is an entrance through a passageway to the rear of the basement, wherein is located the heating plant above named. From that passageway also is an entrance into a restaurant situated on adjacent property. Surrounding the heating plant is a partition separating the remainder of the basement from the heating apparatus. Such furnace room covers a space extending approximately thirteen feet from the rear basement wall toward the front entrance. Contained therein is the coal bin, steam heating plant, and a hot water heating plant. Notation is to be made that the barber shop, previously mentioned, extended out under the sidewalk a considerable distance. The part thereof which was actually in the basement under the building rather indefinitely appears to be about ten feet. By adding the thirteen-foot extent of the furnace room to the ten-foot space in the barber shop, the total, of couse, would be twenty-three feet. If that distance is subtracted from the ninety-foot length of the basement, the remainder is sixty-seven feet. So, after eliminating both the barber shop space and the portion of the basement occupied by the heating plant, there still remained approximately sixty-seven feet in the basement. Between this heating system and the barber shop are apparently two other rooms--one twenty-four feet wide, and the other about twenty-two feet in width. Also there is an uninclosed space in addition to those two rooms. These two rooms just mentioned were the ones actually occupied by appellant until about the time the present action was commenced.

Albert J. Warnke, as lessor, and appellant, as lessee, on October 29, 1926, entered into the lease aforesaid under which the term of the tenancy was to begin January 1, 1927. At that time Warnke held title to the Waterloo property for and on behalf of certain banks in Des Moines. When the lease was executed by the parties as aforesaid, the G. R. Kinney Company held the premises under an existing lease. One Stapher, at the time the present lease was executed, also held a lease for the second and third stories of the same building, together with the heating plant in the basement. That lease was assigned November 1, 1926, by Stapher to one Bergum, who took possession of the second and third stories and heating plant in the basement. During that time the G. R. Kinney Company heated the first floor of the building with an Arcola heating plant located on that floor. A. J. Warnke lived in Des Moines, and the building at Waterloo was managed by R. N. Cowin. Mr. Cowin and appellant went to Des Moines, where the lease with the latter was signed by Warnke, October 29, 1926, as before explained.

After obtaining the aforesaid lease, appellant by assignment took over the G. R. Kinney Company lease, and immediately obtained possession of the premises. Although appellant occupied the premises during the remaining term of the G. R. Kinney Company lease, and then thereafter for many years under his own lease, yet not until recently did he at any time make claim to the heating plant in the rear of the basement. Throughout that entire period, appellant heated the first floor, thus leased by him, with the aforesaid Arcola system, and the tenants in the hotel, occupying the second and third stories, heated their property with said heating system in the rear basement.

Appellant operated a shoe store on the first floor of the building and used the portion of the basement before described for storing his merchandise. Subsequent to the time when the lease was executed by Warnke and appellant, the former, for and on behalf of the banks which he represented, sold and tranferred the real estate to appellee on or about February 1, 1929. As part of that transaction, the various leases on the building were assigned to and became the property of appellee. This change of ownership thereby became apparent to appellant, for he paid rent to appellee after the transfer; yet at no time did appellant claim that the heating plant in the basement belonged to him under the lease. Nevertheless, immediately prior to the institution of this suit, appellant, without appellee's knowledge or consent, locked the rear door to the basement and prevented the hotel people on the second and third floors from using the heating plant for the purpose of heating the hotel.

Hence, the present action was commenced by appellee: First, to obtain an injunction restraining the appellant from so doing; and, second, to reform the lease so as to exclude therefrom any language claimed to be a basis for appellant's demand for the heating plant. Such relief was granted by the district court, and the appellant, therefore, asks that the judgment be reversed.

The basis for appellant's argument in this regard is: First, that the lease expressly covers the rear sixty feet of the basement which includes the heating plant; and, second, that there was no fraud or mistake which could in any way give rise to a reformation of the lease. Without such fraud or mistake, appellant urges there can be no reformation.

“Reformation of a written instrument is to be made only when there is proof that the intention of the parties was to make an agreement such as it is sought to have established, and that said intention was frustrated either by fraud, accident, or mutual mistake.” Rankin v. Taylor, 204 Iowa, 384 (local citation, 387), 214 N. W. 725, 727.

“If the language [in the contract], even though it be that selected by the parties, when given a legal construction, fails to express or defeats their mutual intent and agreement, equity will reform it.” Brown v. Ward, 119 Iowa, 604 (local citation, 609), 93 N. W. 587, 589. To the same effect, see Kowalke v. Evernham (Iowa) 232 N. W. 670, 671.

“* * * In this state it is well settled that equity will grant relief for the purpose of making the legal effect of the instrument correspond to the express intention of the parties as disclosed in their negotiations.” Stelpflug v. Wolfe, 127 Iowa, 192 (local citation 193), 102 N. W. 1130. See, also, Coleman v. Coleman, 153 Iowa, 543, 133 N. W. 755;Halver v. Higgins Sheep Company, 188 Iowa, 806, 176 N. W. 713;Flickinger v. Farmers' Mutual Fire & Lightning Insurance Ass'n, 136 Iowa, 258, 113 N. W. 824;Chapman v. Dunwell, 115 Iowa, 533, 88 N. W. 1067;Conner v. Baxter, 124 Iowa, 219, 99 N. W. 726;Cummins v. Monteith, 61 Iowa, 541, 16 N. W. 591.

[1] In order to distinguish this proceeding to reform a written contract from an ordinary action at law to recover on a parol agreement, the following excerpt is taken from Allgood v. Fahrney, 164 Iowa, 540, reading on page 549, 146 N. W. 42, 46: “Equity only takes cognizance where the contract has been reduced to writing, and the writing does not express truly the actual contract entered into between the parties. Where the writing, through fraud or mistake, does not express the true contract, equity will reform the writing,...