Fountain Valley Transit Mix, Inc. - Page 18

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          petitioner.  Mr. Pisano was a witness in this case, but he was              
          not asked and did not state whether he understood that Nikki's              
          was to pay for tires for any of the trucks it leased to                     
          petitioner when he signed the lease on behalf of petitioner.  He            
          did say that for petitioner's fiscal year ending in 1990,                   
          petitioner had its busiest time and leased about 48 trucks from             
          Nikki's, and he also stated that he furnished to Kurt Caillier              
          his estimate of the number of tires the trucks operated by                  
          petitioner would use in a year.  However, he was not asked and              
          did not testify as to the number of tires he determined would be            
          used for the 48 trucks in a year.  This lack of evidence is                 
          particularly important in evaluating whether there was a mistake            
          in the lease agreement since petitioner was billed by Gillette              
          Tire for 993 tires at a cost of $387,637.30, but an adjustment to           
          the account was made on May 30, 1990.  The inference from this              
          adjustment is that petitioner was no longer liable for the charge           
          for these tires.                                                            
               The record also shows that it was not uncommon for one of              
          the Caillier-owned corporations to pay expenses of another and              
          make adjustments on the books of the corporations involved.                 
               Not only is there no strong proof in this case that the                
          provision that Nikki's pay for the tires on the trucks rented to            
          petitioner was a mistake; the evidence as a whole indicates that            
          it was not a mistake in the agreement the parties entered into.             






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