A-12374, JANUARY 25, 1926, 5 COMP. GEN. 534

A-12374: Jan 25, 1926

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RENT - MISTAKE OF FACT WHERE PROPERTY IS RENTED FOR USE OF A NATIONAL GUARD ENCAMPMENT FOR A PERIOD OF 14 DAYS UNDER A LEASE SPECIFICALLY PROVIDING FOR THE PAYMENT OF RENT AT THE RATE OF $100 PER MONTH AND CONTAINING A PROVISION FOR PRO RATING THE MONTHLY RENTAL DEPENDENT UPON TIME OF OCCUPANCY. PAYMENT IS MADE STRICTLY IN ACCORDANCE WITH THE TERMS OF THE LEASE AND THE VOUCHER ON WHICH SAID PAYMENT WAS MADE WAS CERTIFIED BY CLAIMANT AS TRUE AND CORRECT. TO THE EFFECT THAT IT WAS INTENDED TO PROVIDE FOR A RENTAL OF $100 FOR THE PERIOD OF ENCAMPMENT. SUBMITTING FOR DECISION WHETHER PAYMENT THEREON IS AUTHORIZED. PAYMENT WAS MADE STRICTLY IN ACCORDANCE WITH THE TERMS OF THE LEASE AND THE VOUCHER ON WHICH SAID PAYMENTS WAS MADE WAS CERTIFIED BY CLAIMANT AS TRUE AND CORRECT.

A-12374, JANUARY 25, 1926, 5 COMP. GEN. 534

LEASES, RENT - MISTAKE OF FACT WHERE PROPERTY IS RENTED FOR USE OF A NATIONAL GUARD ENCAMPMENT FOR A PERIOD OF 14 DAYS UNDER A LEASE SPECIFICALLY PROVIDING FOR THE PAYMENT OF RENT AT THE RATE OF $100 PER MONTH AND CONTAINING A PROVISION FOR PRO RATING THE MONTHLY RENTAL DEPENDENT UPON TIME OF OCCUPANCY, AND PAYMENT IS MADE STRICTLY IN ACCORDANCE WITH THE TERMS OF THE LEASE AND THE VOUCHER ON WHICH SAID PAYMENT WAS MADE WAS CERTIFIED BY CLAIMANT AS TRUE AND CORRECT, PAROLE EVIDENCE IN THE FORM OF AFFIDAVITS EXECUTED BY THE AGENT OF THE OWNER OF THE PROPERTY AND THE ADJUTANT GENERAL OF NEW HAMPSHIRE, WHO EXECUTED THE LEASE, TO THE EFFECT THAT IT WAS INTENDED TO PROVIDE FOR A RENTAL OF $100 FOR THE PERIOD OF ENCAMPMENT, CAN NOT BE ACCEPTED TO CONTRADICT THE PLAIN TERMS OF THE LEASE WHICH HAD BEEN APPROVED BY THE GOVERNOR OF THE STATE AND BY THE MILITIA BUREAU.

COMPTROLLER GENERAL MCCARL TO MAJ. GEORGE W. MORRILL, UNITED STATES PROPERTY AND DISBURSING OFFICER, JANUARY 25, 1926:

THERE HAS BEEN RECEIVED BY INDORSEMENT DATED DECEMBER 8, 1925, FROM THE CHIEF, MILITIA BUREAU, WAR DEPARTMENT, YOUR LETTER OF NOVEMBER 30, 1925, SUBMITTING FOR DECISION WHETHER PAYMENT THEREON IS AUTHORIZED, A VOUCHER IN FAVOR OF HERMAN L. SAWYER, IN AMOUNT OF $53.33 COVERING ALLEGED BALANCE OF RENTAL DUE FOR THE USE OF A CERTAIN TRACT OF LAND LEASED BY HIM FOR USE BY THE NEW HAMPSHIRE NATIONAL GUARD FOR THE PERIOD FROM AUGUST 22 TO SEPTEMBER 4, 1925.

THE LEASE CONTAINS, AMONG OTHERS, THE FOLLOWING PROVISIONS:

1. THAT THE LESSOR HEREBY LEASES TO THE LESSEE FOR USE AS A RIFLE RANGE, MANEUVER, AND CAMP SITE FOR THE TERM BEGINNING WITH THE 22D DAY OF AUGUST, 1925, AND ENDING WITH THE 4TH DAY OF SEPTEMBER, 1925, * * * THE FOLLOWING- DESCRIBED PREMISES, * * *.

2. THAT THE LESSEE SHALL PAY THE LESSOR, AS RENTAL FOR THE USE OF SAID PREMISES, ONE HUNDRED DOLLARS ($100) EACH MONTH, AND SHOULD THE PREMISES BE RELINQUISHED BEFORE THE CLOSE OF A MONTHLY PERIOD, THE RENTAL FOR THE LAST PERIOD SHALL BE ONLY THE PRO RATA PART OF THE MONTHLY RENTAL, DEPENDING ON THE TIME OF OCCUPANCY.

PAYMENT WAS MADE STRICTLY IN ACCORDANCE WITH THE TERMS OF THE LEASE AND THE VOUCHER ON WHICH SAID PAYMENTS WAS MADE WAS CERTIFIED BY CLAIMANT AS TRUE AND CORRECT. MAJOR MORRILL, WHO SIGNED THE LEASE FOR THE STATE OF NEW HAMPSHIRE, AND BEN P. LITTLE, WHO SIGNED IT AS AGENT FOR THE OWNER, BOTH NOW ASSERT THAT PARAGRAPH 2 THEREOF DID NOT EXPRESS THEIR REAL INTENTION, AND IT IS SOUGHT TO BE SHOWN THAT THEIR MUTUAL UNDERSTANDING WAS THAT THE RENTAL WAS TO BE $100 FOR THE TERM BUT THAT THROUGH ERROR ON THE PART OF THE CLERK WHO FILLED IN THE LEASE FORM, IT WAS MADE TO READ ,ONE HUNDRED DOLLARS ($100) EACH MONTH.'

THE PRESUMPTION OF LAW IS THAT A FORMAL WRITTEN CONTRACT, SUCH AS THE LEASE IN QUESTION, TRULY EXPRESSES THE AGREEMENT OF THE PARTIES. FIRST NATIONAL BANK V. OCEAN ACCIDENT AND GUARANTEE CORPORATION, 294 FED.REP. 91. AND THE GENERAL RULE IS THAT ALL PREVIOUS NEGOTIATIONS RELATIVE TO THE MATTER INCORPORATED THEREIN ARE MERGED IN A WRITTEN CONTRACT BETWEEN THE PARTIES.

THE LEASE UNDER CONSIDERATION CLEARLY PROVIDES FOR RENT AT THE RATE OF $100 PER MONTH AND IT DOES NOT APPEAR THAT SAID AMOUNT IS NOT THE FAIR RENTAL VALUE OF THE PROPERTY FOR THE 14-DAY PERIOD INVOLVED. ALSO, CONTAINED IN THE LEASE IS A PROVISION FOR PRORATING MONTHLY RENTAL DEPENDING UPON THE TIME OF OCCUPANCY. THE AUTHORIZATION BY THE CHIEF OF THE MILITIA BUREAU WAS FOR THE EXPENDITURE OF ONLY $46.67, WHICH SUM HAS BEEN PAID.

WHILE UNDER CERTAIN CIRCUMSTANCES AGREEMENTS MAY BE REFORMED BECAUSE OF AN APPARENT MUTUAL MISTAKE OF THE PARTIES, AND WHERE THE CONTRACT OTHERWISE WOULD BE UNCONSCIONABLE, THE AFFIDAVITS OF THE AGENT OF THE OWNER AND THE ADJUTANT GENERAL OF NEW HAMPSHIRE, WHO EXECUTED THE LEASE TO THE EFFECT THAT IT WAS INTENDED TO PROVIDE FOR A RENTAL OF $100 FOR THE PERIOD OF THE ENCAMPMENT RATHER THAN PER MONTH CAN NOT BE ACCEPTED TO CONTRADICT THE PLAIN TERMS OF THE LEASE WHICH WAS APPROVED BY THE GOVERNOR OF THE STATE OF NEW HAMPSHIRE AND BY THE CHIEF, MILITIA BUREAU, OF THE WAR DEPARTMENT, THE TERMS OF WHICH ARE NOT UNCONSCIONABLE.