- -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 andPage: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
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