(specially concurring). I concur in the affirmance of the judgment for $275 rent and costs. The complaint alleges the execution of a written lease covering the lots involved and the Hotel Kindred at a monthly rental of $400. The tenendum and habendum clauses in written lease provide:
“To have and to hold said premises, as the same now are, for the purpose óf conducting therein a hotel business * * *and the said lessee hereby agrees to use and occupy said premises as a general hotel and for the purpose of conducting therein a hotel business.”
*1095This written lease further requires the lessee to comply with certain ordinances and state laws covering, and applicable to, hotel properties. It further provides that the lessee mortgages the furnishings, fixtures and supplies in the hotel for purpose of securing rent payments due from time to time. The complaint also alleges an agreement for a lease covering two garages situated upon the lots described in the written executed lease; that it was the intention and agreement between the parties to execute a lease upon such two garages in the manner and form contained in the proposed lease attached to the complaint; that through mistake and oversight the parties failed to execute such lease; that the defendant took possession of the two garages, and has had possession thereof for five months, for which there is due $275 as rent. The proposed lease offered in evidence covers two garage buildings situated on a portion of the lots mentioned in the written executed lease. The term is for five years; the monthly rental $55. The tenendum and habendum clauses therein provide “to have and to hold the same for garage purposes for the term of five years,” etc.
The answer admits the written executed lease, that the same is now in full force and effect between the parties, and that the defendant is in possession of the premises by virtue thereof. It generally denies the other allegations of the complaint.
Upon these issues, the action was tried before a jury. A general verdict was returned in plaintiff’s favor. Upon this verdict the trial court made an order for judgment; that the plaintiff recover $275 rent; that the proposed lease be declared to be the lease between the parties for the term of five years at a monthly rental of $55; that monthly rentals commence on December 1, 1920, and continue until the termination of the lease. Pursuant to such order,,,judgment was entered.
As stated in the opinion of Mr. Justice Grace, two principal questions were submitted to the jury in the instructions of the trial court: First, whether there was an agreement to pay a separate rental for the garages and to execute a separate lease therfor; and, second, if there was such an agreement, whether the failure to execute such lease was through oversight and mistake. The general verdict of the jury has answered both of these questions in the affirmative. I am of the opinion that the evidence amply warrants such findings. The principal contentions of the defendant are grounded in the complaint that the trial court erred in permitting the introduction of oral testimony to vary the terms of the written executed lease. Upon such general ground, the defendant ques*1096tions the right of the plaintiff to maintain the action under the pleadings and proof, the action of the trial court in admitting both documentary and parol evidence and in instructing the jury thereupon, and the sufficiency of the evidence to sustain the verdict.
It is evident that this action was treated as a law action. The trial court did not regard the verdict as advisory nor make findings. No reformation of any lease was requested. No reformation of the garage lease or the agreement therefor was necessary, in order to maintain this action for rent accrued. Although the prayer of the complaint requests specific performance, no specific performance is required in order to permit plaintiff to recover such rent accrued.
The gist of plaintiff’s action, as alleged and as tried, is an action for rent for a period of occupancy by a lessee under an agreement for a lease. It is not an action to recover rent due for the hotel premises.
Plainly, if the complaint had made no reference to the written executed lease and had set up the facts concerning the agreement for the lease and the failure to execute the same through oversight and mistake, followed by an allegation of occupancy by the lessee and the failure to-pay rent therefor as agreed, such complaint would state a legal cause of action for rent during the period of such occupancy. The issues otherwise submitted by the plaintiff, or the defendant, served to disturb this legal cause of action by injecting the allegation of a written executed lease, the terms of which, concerning the property described, cover the two garages.
By reason of the issue tendered upon the written executed lease, it became necessary for the plaintiff to explain and render inapplicable the specific written terms of this lease covering the hotel, in order to maintain an action for rent of the garages. s To thus explain and render inapplicable the written executed lease, parol evidence was necessary. Such parol evidence was received by the trial court. This parol evidence, pursuant to the verdict, shows that the parties agreed upon two leases; one for the hotel property, another for the garages. It was the intention of the parties that these leases be executed at the same time; both for a similar term, but for different rentals; both covering the same lots,, but different properties. Both leases, before execution, were drawn by the same attorney, but through a mistake only one, in fact, was executed. If both leases had been signed and delivered at the same time as the jury found that the parties intended and agreed, an ambiguity would have appeared concerning the application of the two leases. An apparent con*1097flict would have appeared in the description of the real estate. Nevertheless from the surrounding collateral circumstances and extrinsic facts the leases could readily have been harmonized, and the properties in each intended to be leased identified. Patrol evidence would have been admissible for such purposes.
The present action differs only in the respect that the lease for the garages was not executed. The intention and agreement of the parties nevertheless remain the same. If the written executed lease covering the hotel property had not been injected in this case, it would have been competent for the plaintiff to have proved by parol the intention and the agreement for the lease of the garages and the occupancy taken by the lessee pursuant thereto. Such parol testimony remained competent, when, upon the introduction of the written hotel lease, it served to prove an evident mistake and ambiguity therein, in connection with the garage lease.
In this respect it may be noted that the written executed lease is a lease for hotel purposes. The lessee agrees to use the premises for hotel purposes. The unexecuted lease is a lease for garage purposes. The evidence is sufficient to disclose that such purposes are different. Although the language of the-written executed lease is intelligble, nevertheless, from the collateral circumstances and the parol evidence offered an ambiguity appears such as might be termed latent. Harney v. Wirtz, 30 N. D. 292, 304, 152 N. W. 803. For the purposes of explaining the ambiguity and the mistake which occasioned the same, parol evidence was admissible, even in an action tried to the jury. See French v. Ins. Co., 29 N. D. 426, 438, 151 N. W. 7, L. R. A. 1915D, 766; Durr et al. v. Chase, 161 Mass. 40, 36 N. E. 741; 22 C. J. 1192. I agree with the opinion of Mr. Justice Grace to the effect that the reception in evidence of a letter written by the defendant to plaintiff did not constitute prejudicial error.