
    CA.SE 13. — ACTION BY CHARLES T. AUFENCAMF AGAINST J. P. STORCH.
    April 28, 1910.
    Aufenkamp v. Storch.
    Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).
    Wm. H. Field, Judge.
    Judgment for defendant, plaintiff appeals.
    Reversed.
    1 Evidence Parol Evidence — Written Lease. — In the absence of mistake or fraud, a lease reduced to writing' and describing the property leased is conclusive on the issue of what property is included therein; and parol evidence is inadmissible to add to its terms.
    2. Landlord and Tenant — Forcible Detainer — Headings—Issues A tenant in forcible detainer before a magistrate, who claims the premises under a lease which by mistake or fraud did not include the property, need not set forth written pleadings of fraud or mistake, but he must show as a matter of fact that the property in controversy was rented to him, and that by fraud or mutual mistake it was omitted from the lease.
    3. Landlord and Tenant — Terms of Lease — Mutual Mistake.— Where a written lease of a store and fixtures, etc., did not include a stable, the tenant could not hold possession of the stable, unless the landlord did lease the stable, and it was omitted from the lease by mutual mistake.
    
      4 Evidence — Lease—Construction—Parol Evidence. — The intention of the parties to a lease must be gathered from the lease itself, and not from what was said .or done prior to its execution.
    R. A. McDOWBLL for appellant.
    JACOB SOLINGE'R for appellee.
   Opinion op the Court by

William Rogers Clay,

Commissioner — Reversing.

In this action of forcible detainer by appellant, Chas. F. Aufencamp, against appellee, X F. Storch, instituted in the magistrate’s court of Jefferson county, to recover possession of a stable, judgment was there entered in favor of appellant. Appellee, S-torch, then traversed the judgment and appealed to the circuit court. There a trial before a jury resulted in a verdict and judgment for appellee. From that judgment Aufencamp appeals.

Appellant is the owner of certain premises at the northeast corner of Second and Hill streets in the city of Louisville. On the front part of the lot there is a large three-story brick building, facing Second street and running back on Hill street a considerable distance. Almost the entire' first floor of this building, with the ’ exception of a few rooms in the rear, was used as a grocery store. On the rear part of the lot, binding on an alley and on Hill street, was a stable, which was used in connection with the grocery store. Between the stable and the building on the front of the lot there is a yard. Appellant also owns the adjoining lot to the north of the premises facing on Second street and running back to the alley.

Appellant had occupied the lower floor of the building at the corner of Second and Hill streets as a grocery for many years, and had used the stable In controversy in this action in connection with the grocery. In December, 1907, appellee purchased the grocery business. At the same time he leased from appellant the store where the business was conducted. The lease is upon one of the ordinary blank forms generally used. The rental to be paid was $55 per month for the first year and $60 per month thereafter. The property rented is described in the lease as follows: “Store including fixtures, namely: 7 counters, 10 tea cannisters, 1 showcase & shelving, meat box, butter box, meat rack, 3 meat blocks.” On the tidal of the case appellant testified that he did not give to appellee any written lease for the stable, but merely permitted him to use it in ■ connection with the grocery store until he could make other arrangements. Thereafter he gave him 30 days’ notice to quit. lie also testified that nothing was said about renting the stable at the time the transaction was concluded. On the other hand, appellee testified that, when he went to examine the premises, appellant took him through the storeroom, out into the yard, and through the stable, and stated that the yard and stable were to be a part of the leased property.

It is earnestly insisted for appellant that the court erred in admitting evidence tending to alter or vary or contradict the written lease without a plea of fraud or mistake. On the other hand, appellee insists that the contract was incomplete and ambiguous', and that oral evidence was therefore properly admitted without such plea. In this connection it is insisted that the lease does not specify where the property was located. It does not give the name of the street, town, or state. This may be true, and, if the question were one of location, oral evidence would be admissible upon this point. However, that is not the issue in the case. The issue is whether or not appellant did as a matter of fact rent to appellee the stable in controversy. The lease specifies the property rented. In the absence of a showing of mistake or fraud, the contract of the parties as embodied in the lease is conclusive. However, in view of the fact that in actions of this character no written pleadings are required, we conclude that it was not necessary for appellee in order to avail himself of such g’round of defense to file a pleading setting forth a plea of mistake or fraud. But, as fraud was not relied upon, it was necessary for appellee to show as a matter of fact that the stable was rented to him, and that by mutual’ mistake of the parties it was omitted from the lease.

Upon the trial in the circuit court the court instructed the jury as follows:

‘ ‘ If you shall believe from the evidence that at the time complained of in the pleadings in this case the defendant, J. P. Storeh, was in possession of the premises mentioned in the pleadings by will or sufferance of the plaintiff, Aufencamp, then the plaintiff, Aufencamp, had the right to give the notice which has been introduced in evidence, and demand and receive possession of the stable 30 days thereafter. If you shall believe those facts existed, the law is for the plaintiff and you should so find.

“But, if you shall believe from the evidence that at the time the lease was made, to wit, December 31, 1907, it was intended by the parties making such lease to include therein the stable as part of the premises rented, then the defendant, Storeh, had the right to hold possession of the premises.

“If you find for the plaintiff, your verdict should be in this form: ‘We, the jury, find the defendant, Storch, guilty of the forcible detainer as claimed in the petition.’

“If your verdict shall be for the defendant,. Storch, your verdict should be: 'We of the jury find the defendant, Storch, not guilty of the forcible detainer as claimed in the petition.’ ”

The first instruction is proper.

Instruction No. 2 is erroneous for the reason that, in the absence of a showing of mistake, the intention of the parties must be gathered, not from what was said or done prior to the execution of the lease, but from the lease itself. In lieu of instruction No. 2, the court on the next trial will instruct the jury as follows: “As the written lease does not include the stable in controversy, you will find for pláintiff, unless you believe from the evidence that as a matter of fact plaintiff did rent to defendant the stable, and that it was omitted from the lease by mutual mistake of the parties; in which event you will find for the defendant. ’ ’

Judgment reversed and cause remanded for a new trial consistent with this opinion.  