Fountain Valley Transit Mix, Inc. - Page 15

                                        -  -15                                           
               In this case, our issue is not the rights created by the               
          lease as written, which requires Nikki's to pay for tires, but              
          whether there was a mistake in putting the provision as to                  
          payment in the lease.  However, we conclude that under California           
          law, if it has application here, as under our "strong proof                 
          rule", parol evidence would be admissible to show that the                  
          provision in the lease for payment by Nikki's for tires was a               
          mistake.                                                                    
               Under California law, where a mistake in a writing is put in           
          issue, the parol evidence rule does not exclude evidence relevant           
          to that issue.  Cal. Civ. Proc. Code sec. 1856 (West 1983); Stock           
          v. Meek, 221 P.2d 15, 19-20 (Cal. 1950).  We, therefore, may                
          properly consider the testimony of Kurt Caillier with respect to            
          whether there was a mistake in the lease with respect to which              
          company was required to furnish tires for the trucks petitioner             
          leased from Nikki.                                                          
               Under California law, the requirement of consent to a                  
          contract may be disproved by mistake.  Mistake may be either of             
          fact or of law.  Cal. Civ. Code sec. 1576 (West 1982).  Mistake             
          of fact is a mistake, not caused by the neglect of a legal duty             
          on the part of the person making the mistake, and consisting of             
          either an unconscious ignorance or forgetfulness of a fact                  
          material to the contract, or belief in the present existence of a           
          thing material to the contract which is nonexistent.  Cal. Civ.             
          Code sec. 1577 (West 1982).  Mistake must be proven by clear and            




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