Kelley v. Von Herberg

(dissenting) — The majority opinion is radically wrong’ on the matter of the reformation of the lease, does not apply the proper legal test, and disregards our precedents.

The majority concede that the finding of the trial court that the proposed release clause, releasing von Herberg from personal liability when the building had been completed and freed from incumbrances, was supported by overwhelming testimony, and the testimony of Kelley to the contrary was untrue.

The majority also adopt the testimony that it was the vital subject of discussion all through the negotiations, yet the majority…