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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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