Commonwealth Oil Co. v. Hayden Realty Co. , 9 Ohio Law. Abs. 312 ( 1930 )

LEVINE, J.

It seems to us to be the settled law that when ,a party sues on a written instrument which is so faultily drawn as not to express the real intention of the parties, that the proper procedure would be first, to ask for a reformation of the instrument so as to make it correspond with the intention of the parties and, second, to base an action thereon as reformed. ’ Surely the trial court could not award rental to the defendant in error as against the plaintiff in error upon the provisions of the lease as they now read for, as we pointed out, the lease as it now reads obligates the defendant in error to pay the plaintiff in error not less than one hundred dollars per month. Until this instrument is reformed and corrected the court could not render judgment thereon.

We fail to find any other standard whereby the trial court was enabled to fix the measure of damages in the manner it did. No evidence was offered by defendant in error to justify the court to fix the reasonable rental value in the manner it did.

For these reasons the judgment of the Municipal Court is ordered reversed and the case remanded for a new trial.

Vickery, PJ, and Weygandt, J, concur.