LANE et ux.
Judgment reversed and remanded for a new trial.
Nasib Karam, of Nogales, for appellants.
Norman Herring, of Tucson, for appellee.
Stanford, Justice. Udall, C. J., and Phelps, De Concini, and La Prade, JJ., concurring.
[73 Ariz. 436] This action arose out of the alleged breach of the conditions and undertakings of a farm lease. E. C. Lane and Millie Lane, appellants and defendants below, hereinafter styled lessors, own a farm near McNeill, Arizona. Sometime during the month of February, 1948, Bob Mathews, appellee and plaintiff below, hereinafter styled lessee, entered into negotiations with lessors to lease the farm on a percentage basis of the crop grown. The terms to be incorporated in the written lease were discussed [73 Ariz. 437] by the parties at the farm in the presence of J. M. Jessen, lessors' attorney, who resides and practices law in California. Jessen made a written memorandum of the terms agreed upon and on his return to California drew up the lease and mailed three copies to lessors, two of which were to be signed by the respective parties. Lessors read the lease and then, without signing it, delivered the lease to lessee for his signature. Lessee, who can neither read nor write, had the agreement read to him. Not being satisfied with the terms thereof, lessee took the agreement to Alfred Putts, his financial backer, for inspection. Putts and lessee took the lease to Lloyd Helm, a Douglas attorney, and had the last page changed to embody the terms and conditions which they contend had been agreed upon. Helm's secretary removed the original last page, number seven, and substituted the new page seven embodying the changes. The secretary also copied the secretarial marks on the new page as they appeared on the original six pages of the lease, i. e., JMJ:MSJ and the date 3/16/48, which was also on the original six pages. Lessee then signed the lease and returned it to lessors without notifying them of the changes which had been made. Lessors did not re-read the lease before signing it but stated that they checked the pages noting the identifying marks on the bottom. After so inspecting the lease they signed it before a notary public in California.
Lessee brought this action for damages to the cotton crop as a result of lessors' refusal to keep the water pumps and engines in good repair as they were required to do under the terms of the written lease as changed by lessee. Due to lack of irrigation, approximately 200 acres of cotton were damaged. Lessors answered and counterclaimed praying for reformation of the agreement and for damages to their farm machinery. Their defense was fraud or mutual mistake. The trial was before a jury in two phases, the first, on the issues of fraud or mutual mistake, and the second on the question of the breach of the lease. The court instructed the jury to return a verdict in favor of the lessee on the issue of mutual mistake and submitted the following interrogatories on the issue of fraud:
"Did E. C. Lane and Millie Lane know that the last page of the farm lease had been changed before they signed it?"
Answer -- No.
"If your answer to the above interrogatory numbered one (1) is no, then: did E. C. Lane and Millie Lane act as reasonably prudent persons in failing to read ...