
    [Argued Oct. 31;
    decided Nov. 20, 1893;
    rehearing denied.]
    KLEINSORGE v. ROHSE.
    [S. C. 34 Pac. Rep. 874.]
    Jurisdiction op Equity to Reform Written Contracts.— To justify a' court of equity in reforming a written contract, it should clearly appear that there was some relation of trust or confidence between the parties that has been abused, or that there was fraud, or fraud on one side accompanied by mistake on the other, or that the means of knowing the facts were not equally open to both parties. Archer v. California Lumber Co. 24 Or. 341, approved and followed.
    Appeal from Multnomah: M. G. Munly, Judge.
    This is a suit to reform and enforce a written lease of real property. The facts show that the plaintiff, Fred Kleinsorge, on February fifth, eighteen hundred and ninty-two, was the owner and in the possession of a tract of land in South Portland, Oregon, containing four and three hundredths acres, in or near the center of which was his dwelling-house with a path from it to the Macadam Road on the east, and a pipe laid from a spring near the west end of said tract to the house, supplying water for irrigating a garden and for domestic purposes. The plaintiff, Kleinsorge, leased said tract to Joseph Rohse for a term of five years, to be used as a concert garden, and, after the latter had commenced to improve it by building a high board fence around that part lying in front of said dwelling, and to erect a pavilion thereon, he desired an extension of the term, and the plaintiffs thereupon executed and delivered to him the following lease: “ This agreement, between Fred Kleinsorge and Katharina Kleinsorge, his wife, of the first part, and Joseph Eohse, of the second part, all of Fulton Precinct, of the city of Portland, Oregon, witnesseth : That the said Fred Kleinsorge and Katharina Kleinsorge, his wife, in considera- • tion of the convenants of the said Joseph Eohse,-(his-* executors or administrators,) doth hereby lease unto the"' said Joseph Eohse, his executors or administrators, from the fifth (5th) day of February, A. D. eighteen hundred and ninety-two, until the fifth day of February, A. D. nineteen hundred and two,—that is, for the term of ten (10) years,—the following described premises, to wit: Four (4) acres, or less, of ground, and fruit trees thereon, to be used as a pasture or as a concert garden at the discretion of the said Joseph Eohse. The said Joseph Eohse agrees to make room for street purposes, if so directed by the council of the city of Portland, without claiming any damage therefor. The said Joseph Eohse also agrees to pay such an increase 'of the taxes on said property, which being above and over the amount now paid by Fred Kleinsorge; after the expiration of the first five (5) years, Joseph Eohse agrees to pay all taxes; said Joseph Eohse further agrees to pay such street improvement as may be deemed necessary on the present streets. The rent to be paid at monthly payments of twenty-five ($25.00) dollars per month for the first three (3) years, and thirty-five ($35.00) dollars for the remaining seven (7) years. This monthly rent must be' paid on or before the twentieth (20th) of each month, or this lease shall be void. And said Joseph Eohse further agrees to return said premises -at the expiration of said time in as good order and condition as they are now in, reasonable wear and tear and unavoidable casualties excepted.” This was dated February fifth, eighteen hundred and ninety-two, signed by the parties, and duly witnessed and acknowledged. Mr. Kleinsorge, on May second, eighteen hundred and ninety-two, went to the mines in Eastern Washington, leaving his wife in possession of the dwelling-house, for whose accommodation the defendant placed locked gates in the high board fence, furnished her with keys thereto, allowed her to use the path from the house across his concert garden to the Macadam Road, and permitted her to occupy the dwelling until February fifth, eighteen hundred and ninety-three, when he placed other locks on the gates, and refused to furnish her with the keys to them, whereupon this suit was commenced to enjoin him from interfering with her possession and to reform the lease.
    The plaintiffs allege that it was understood and agreed that said dwelling and enclosed garden, eighty-five by one hundred and. sixteen feet, surrounding the house, together with the right of way across the concert garden to the Macadam Road, and the right to use the water from the spring for irrigating said garden and for domestic purposes, should be reserved to them by the terms of said lease; but that the defendant caused the foregoing lease to be prepared, and represented to them that it was in accordance with their agreement, and they, relying upon such representations, were thereby induced to execute it, and did not discover the defects and omissions until just before this suit was commenced; that said lease does not contain all the agreements of said contract, and that they believe the defendant fraudulently obtained their signatures to it well knowing it to be defective. The defendant denied, the material allegations of the complaint, but, as the lease failed to describe any property, he admitted that there was a mutual mistake in this regard, and adopted the description of the property as given in the complaint, and prayed that the lease be reformed so as to contain a correct description of the leased premises; and the cause being at issue was tried ¡by the court, and a decree reforming said lease as prayed for by the plaintiffs was rendered, from which decree the defendant appeals.
    Modified.
    
      Mr. James Finley Watson (Messrs. Edivard Mendenhall, Edward B. Watson, Benjamin B. Beelcman, and Elbert J. Mendenhall on the brief), for Appellant.
    
      Mr. Edward W. Bingham (Mr. Clarence Avery on the the brief), for Respondents.
   Opinion by

Mr. Justice Moore.

Does the foregoing lease express the intention of the parties to the contract, is the question presented by this appeal. To entitle a party to have a written contract reformed by a court of equity, the complaint must show that some relation of trust or confidence existed between the parties to it, or that there was fraud or misrepresentation, or that the means of knowledge as to the terms and conditions were not equally open and accessible to both parties: Archer v. California Lumber Co. 24 Or. 341, 33 Pac. 526. The complaint herein is founded upon the alleged fraudulent representations of the defendant, but does not allege that any relation of trust or confidence existed between the' parties. In Hawkins v. Hawkins, 50 Cal. 558, it was held that where the complaint did not allege that any relation of especial trust or confidence existed between the parties to the contract, or that the means of knowledge as to the terms and conditions of the writing were not equally open and accessible to both parties, a demurrer was properly sustained, f

Upon the question of misrepresentations by the defendant as to the contents of the lease, the plaintiffs do not testify that he or any other person told them that it, as prepared, contained all or any of the terms or conditions agreed upon, and there is not one particle of evidence in the record to support the allegation to that effect in the complaint. The answer, however, having admitted that there was a mutual mistake in the description of the premises, makes it proper to consider the evidence for the purpose of ascertaining the terms and conditions of the contract agreed upon by the parties: 20 Am. & Eng. Enc. Law, 720, and cases cited. The evidence shows that the plaintiffs and defendant, as well as most of their witnesses, are Germans, and that the plaintiffs are old, and do not well undersiand the English language; that Mr. Kleinsorge went with the defendant to the office of Messrs. Rickard & Ohloff, neither of whom he was acquainted with, where Mr. Rickard prepared but one copy of the first lease at Mr. Kleinsorge’s dictation, and delivered it to Mr. Rohse. The date of its execution is uncertain, the plaintiff testifying that it was February fifth, eighteen hundred and ninety-two, while Mr. Rickard, who is not positive, thinks it was some time during the previous month. On the day of its date plaintiff F. Kleinsorge executed and delivered to the defendant an instrument, written in the German language, which being translated, reads as follows:—

“Fulton, Oregon, February 8,1892.

“I, the undersigned, testify hereby that the first monthly payment of twenty-five dollars between the fifth and twentieth of June begins for the year eighteen hundred and ninety-two between the fifth and twentieth, eighteen buudred and ninety-two; also no payments between the months in this year.

(Signed.)

“F. Kleinsorge.”

The plaintiff F. Kleinsorge testified that upon consultation with his wife, after the first lease was executed, they concluded that the defendant would be compelled to expend large sums of money in preparing the grounds for a concert garden, and that he could not derive any benefit therefrom until this work was completed, and that to aid and encourage him in prosecuting the work this instrument was executed. The defendant testified that the plaintiff, after the lease was executed, offered to pay him seventy-five dollars if he would permit Mrs. Kleinsorge to remain in the dwelling-house and use the small garden for the term of one year, to which he agreed, and that the receipt was given in settlement thereof, and that in pursuance of this agreement he placed gates in the high board fence for her accommodation, and allowed her “to occupy the house and garden for one year. The plaintiff further testified that when the defendant desired an extension of the term of. the lease, he sent Mr. Ohloff, whose partner had prepared the first lease, to see him about it, and that he told Mr. Ohloff he would not lease the house and garden, and that Mr. Ohloff, who is a surveyor, told him he ought to have the premises surveyed, but because of his lack of means it was not done; that' about two weeks after this request was made the defendant’s wife notified plaintiff that Mr. Ohloff had come to prepare a new lease of the property, and that he told the defendant and his wife that he would not lease the house and garden. The defendant admits that the plaintiff made this statement, but says he told the plaintiff at the time that he had no use for the property with them in possession of the house, and that this claim had been the cause of their previous trouble.

Mr. Ohloff testified that he copied the description from the first lease, and that, finding it insufficient, he requested the plaintiff to procure his deed, that he might correctly describe the property, but that both parties claimed that it was sufficient, whereupon he wrote it at the dictation of the plaintiff, who told him he was leasing all the property to the defendant, and when it was completed he read it in English, and explained its terms. in the German language; that the plaintiffs thereupon signed it in the presence of the witnesses, and acknowledged its execution. A duplicate copy óí the new lease was then prepared and deli.ver.ed to Mr. Kleinsorge, and the old one destroyed by Mr. Rohse. Mr. Kleinsorge testified that he did not understand the terms of the lease when read by Mr. Ohlofif, and Mrs. Kleinsorge testified that she understood only that part of the lease which provided for the payment of rent. Some testimony was given which tended to prove that Mr. Kleinsorge intended, when he rented the property, to go to the mines, and that his wife was expected to live with a married daughter in Portland, Oregon. Several witnesses, most of whom were in the defendant’s employ, testified that Mr. Kleinsorge told them that he had rented the whole tract to the defendant. It also appears that Mr. Kleinsorge, after he had leased the property, worked about three weeks for the defendant, assisting him in building fences on the leased premises, for which he made no charge and received no compensation.

Grouping the facts and circumstances, we find the following in support of the plaintiff’s contention: The evidence of Mr. Kleinsorge as to the transaction; the fact that he leased four acres or less when he owned more; the circumstance that the defendant placed gates in the high board fence for Mrs. Kleinsorge’s accommodation, and permitted her to remain in possession of the house and garden; and that Mr. Kleinsorge, without any compensation therefor, worked for about three weeks assisting the defendant in addition to the donation of three months’ rent. Opposed to this we find the testimony of Prank Rickard that the first lease contained no reservation; that .the new lease provided for an increased amount of rent, contained no reservation, and the strong presumption that it expresses the intention of the parties; the testimony of Mr. Ohloff that no reservation was claimed by Mr. Kleinsorge at the time the lease was executed, and that he told him at that time he was leasing the whole' premises; the denial of the defendant, and the testimony of several witnesses that Mr. Kliensorge stated to thenT that he had leased to the defendant all his property; and the receipt for seventy-five dollars. The trial court, by seeing the witnesses and hearing them testify, certainly had a better opportunity forjudging their character, and the weight of their evidence, than this court can possibly possess from an inspection of the record, and yet we do not think the plaintiffs have established their case by the convincing evidence required in such cases, but, on the contrary, it affirmatively appears from the record that the equities are clearly with the defendant. The evidence does not show that Mr. Kleinsorge had reason to believe or did believe that Mr. Ohloff was acting as his agent, or stood in any confidential relation towards him, or that any misrepresentations were made to him by any person at the time the lease was executed.

2. Every written contract carries the strong presumption that it expresses the terms agreed upon between the parties to it, and ought not to be reformed, except when' it clearly and satisfactorily appears that there has been a mutual mistake, or a mistake on the part of the plaintiff, accompanied by fraud upon the part of the defendant, or by such acts on his part as would clearly be inequitable between the parties. Tested by this rule, we do not think the plaintiffs have made the necessary proof to entitle them to the relief sought, and for that reason the decree must be modified in so far as it gave the plaintiffs any reservation in the property leased, or restrained the defendant from occupying any part of it. Modified. .  