a restraint against alienation are not favored to occupy the building by Lennon's, subseby the courts. Clear and convincing evidence quent circumstances caused a change in the of a previous definite agreement on the par- plans. This statement was made as the reaticular point is necessary to justify the in- son why he desired to lease the premises and sertion of such a clause in a lease, and, even as an inducement to Mrs. Dolph to enter into where such clauses appear, they the construed the lease. It is not a part of the consideration 'with the utmost strictness in the interest of for the contract. See Philpot v. Gruninger, freedom of alienation. 16 R C. L. 832, § 328. 14 Wall. 570, 20 L. Ed. 743. Mrs. Dolph Tiffany on Landlord and Tenant, § 152, p. treats the assertion of Berg's as a promise. 921, says: "Restrictions of this character upon alienation by the lessee are not favored and are, it is said, to be construed strictly, and a particular mode of alienation is, it has been stated in a leading case on the subject, not to be regarded as prohibited unless it is 'by words which admit of no other meaning.'" See, also, Id. § 46; Goldman v. Feder, 84 [8] The general rule, as stated in Cerny v. Paxton & G. Co., 78 Neb. 134, 110 N. W. 892, 10 L. R. A. (N. S.) 640, is that performed; that, to constitute actionable fraud, "Fraud cannot be predicated on a promise not there must be a false assertion in regard to some existing matter by which a party is induced to part with his money or property." The mere nonperformance of a promise made in the course of negotiations or the failure to carry out an intention expressed in the course of such negotiations is not of itself * * Nothing which flows out of that in- either a fraud or evidence of a fraud, in the terest as an incident is to be done away by absence of allegations and proof that the loose expressions, to be construed by facts representations were falsely and fraudulently more loose; that it is upon the party, who made with intent to deceive; that is, that the has forborne to insert a covenant for his own statement of intent as to the future was made benefit, to show his title to it; and that it is in bad faith. Adams v. Schiffer, 11 Colo. 15, safer to require the lessor to protect himself 17 Pac. 21, 7 Am. St. Rep. 202. See note, 10 by express stipulation than for courts of equi-L. R. A. (N. S.) 641. A representation, to be fraudulent in the legal sense, must relate to a past fact or present condition, and must not be a mere promise. Casselberry v. Warren, 40 Ill. App. 626; Hartsville Univ. v. Hamilton, 34 Ind. 506; Welshbillig v. Dienhart, 65 Ind. 94; Wheeler v. Mowers, 16 Misc. Rep. 143, 38 N. Y. Supp. 950; J. H. See, also, opinion of Lord Thurlow in Hen- Clark Co. v. Rice, 127 Wis. 451, 106 N. W. 231, derson v. Hay, 3 Brown, Ch. 632. 7 Ann. Cas. 505; and other cases cited in note to Cerny v. Paxton, 10 L. R. A. 641 et seq. ty to hold that contracting parties shall insert, not restraints, expressed by the contract, or implied by law, but such, more or less in number, as individual conveyances shall from day to day prescribe, as proper to be imposed upon the lessee; and that all those restraints, so imposed from time to time, are to be introduced as the agregate of the agreement." [7] The claim for the insertion of a nonassignable clause is practically based upon the statement made by Mr. Berg on behalf of Lennon's during the negotiations for the lease to the effect that they desired the building of Mrs. Dolph for the purpose of conducting their business which they had been conducting on Morrison street, and that he expected to improve the building by the expenditure of $35,000 or $40,000. Neither of these matters was of a contractual nature. Both Mrs. Dolph and Mr. Simon say there was no mistake in regard to omitting from the lease any mention of Mr. Berg's statement that he expected to expend $35,000 or $40,000 on the property. Mr. Simon, who was attorney for Mrs. Dolph, and who drew up the instrument, says that he had no intention of including a provision affirmatively requiring the premises to be used by Lennon's although he thought that as a practical matter that would be the effect of a provision against assignment or subletting without written consent. The reformation of the lease is therefore based upon loose language made by Berg during the negotiations, and, although made in good faith, and at that time it was the intention The defendant Lennon's did not agree as a part of the contract to occupy the premises for its business only, or to conduct its business thereon as conducted at Morrison street. There is a marked distinction between the motive that may induce one to enter into a contract and the consideration of the contract. The fact that an intention expressed by the representative of Lennon's in the course of the negotiations was not carried out, or that the hopes or plans discussed did not eventuate, is not of itself fraud or evidence of fraud. It cannot be made the basis of a suit for reformation, in the absence of proof that the representations were falsely and fraudulently made with intent to deceive; that is, that the statement of intent as to the future was made in bad faith. It seems that Mr. Berg was absolutely sincere in explaining his reasons for negotiating the lease. It appears from the record that he went to great trouble and expense on behalf of Lennon's in procuring plans for carrying his wishes into execution. Impaired health and a disappointment as to his son, whom he ex (220 P.) pected to assist in the conduct of the busi- conform to the actual stipulation of the parness, altered the conditions, and these intentions expressed by him and referred to by Mrs. Dolph as "promises" could not be carried out. [9] The plaintiff in her complaint, as amended at the trial, after alleging that the error in the lease occurred through mutual mistake, alleges that appellants were guilty of fraud in signing and accepting the lease as drawn, without pointing out that there was a provision omitted. The trial court appears to have adopted that view. At the time the negotiations for the lease were had, the main part of which were at Mr. Simon's office, all of the interested parties assented to Mr. Simon drawing the lease. Neither Mr. Berg nor Lennon's, Incorporated, was represented by an attorney at that time. After the lease was drawn it was submitted to Mr. Berg and executed as drafted. It is not reasonable to hold or expect that Berg, or any one representing Lennon's should be required to notice provisions in the lease, or omitted from the lease, any more than Mr. Simon, who is considered to be an eminent, able, and careful attorney. He represented Mrs. Dolph in the negotiations, and suggested that the lessee offer $1,500 per month rental to the premises, instead of $1,450. It seems clear to us that there was no fraud either in the preparation or execution of the lease. The language of the court in the case of Fulton v. Colwell (C. C.) 110 Fed. 54, seems pertinent to the case at bar. "It is obvious that there can be no question of fraud respecting either the preparation or execution of this contract. It was drawn by Mr. Day, the attorney of the complainant, and was executed in his presence. contract was fairly made, deliberately entered into by the parties, with full opportunity to become acquainted with its contents." See, also, 12 R. C. L. 254, § 21. The ties. Bradshaw v. Provident T. Co., 81 Or. 55-62, 158 Pac. 274; Richmond v. Ogden St. Ry. Co., 44 Or. 48, 74 Pac. 333; Bird v. Mayo, 75 Or. 100-103, 144 Pac. 574, 145 Pac. 13, 146 Pac. 475; Howard v. Tettlebaum, 61 Or. 144, 120 Pac. 373; Kraemer v. Alvord, 97 Or. 227– 231, 189 Pac. 990; 4 Pomeroy's Equity Jurisprudence (4th Ed.) § 1376. It is conceded that the concurrence of an excusable mistake of one party and fraud of the other is as potent to justify reformation as a mutual mistake. Plaintiff alleges in her complaint that— After that in the complaint "plaintiff alleges that the defendant Lennon's, Incorporated, at the time of the signing of the said writing, * had full knowledge and notice that the said writing as signed did not express or declare the actual true and full agreement between the said plaintiff and the said defendant Lennon's, Incorporated." There is a vast difference between mistake and fraud. One negatives the other. As we have heretofore stated, we find there was no fraud in the execution of the lease. Mr. Simon says that he made a "mistake" in not noticing that his stenographer had overlooked a portion of the "boiler plate" provisions. Mrs. Dolph says she read the lease over and thought it conformed to the agreement, but was mistaken. There was no testimony, however, to show that Mr. Berg, who represented Lennon's, made any such mistake. But Mr. Simon and Mrs. Dolph both state that the subJect of assigning and subletting, or restrictions thereon, was never discussed. It should be kept in mind that we are concerned solely with the nonassignment and subletting clause, since that is the only relief granted plaintiff, who does not appeal. [13] In the consideration of a case of this kind it should be borne in mind that every presumption is to be invoked in favor of the correctness of the instrument written. It is important that the sanctity of the written agreement be preserved. 23 R. C. L. 367, 368, [10] The subletting of the premises by Lennon's cannot be made the basis of reformation on the ground of fraud for the reason it was not a fraudulent transaction nor a badge of fraud; moreover, it occurred more than two years after the making of the lease; "the fraud which will entitle the party to relief is fraud at the time of the execution of the instrument, and not in a subsequent § 67. It is an old established rule in this and distinct transaction." 23 R. C. L. 329, § 21. [11] To obtain reformation the testimony of a "mutual mistake" must be clear, definite, cogent, and unequivocal, and must show precisely what was intended by the parties to be contained in the instrument. [12] Generally, where a memorandum in writing fails to conform to the contract between the parties in consequence of their mutual mistake, or the mistake of one party and fraud of the other, a court of equity will reform the instrument so as to make it state, which has been consistently followed, that an instrument will not be reformed except upon "clear and convincing proof" of the facts alleged in the complaint. Remillard v. Prescott, 8 Or. 37; Epstein v. State Ins. Co., 21 Or. 179, 27 Pac. 1045; Kleinsorge v. Rohse, 25 Or. 51, 34 Pac. 874; Thornton v. Krimbel, 28 Or. 271, 42 Pac. 995; Stein v. Phillips, 47 Or. 545, 84 Pac. 793; Smith v. Interior Warehouse Co., 51 Or. 578, 94 Pac. 508, 95 Pac. 499; Sayre v. Moir, 68 Or. 381, 137 Pac. 215; Boardman v. Ins. Co. of State of Pa., 84 Or. 60, 164 Pac. 558. Under the cir cumstances of this case, the casual statement of Mr. Berg, of Lennon's, during the preliminary negotiations as to what the lessee intended to do with the premises cannot be the basis for a legal mandate, forcibly incorporating into the lease a provision against assignment and subletting. United States v. Milliken Imprinting Co., 202 U. S. 168, 26 Sup. Ct. 572, 50 L. Ed. 980; Bower v. Bowser, 49 Or. 182, 88 Pac. 1104; Suksdorf v. Spokane P. & S. Ry. Co., 72 Or. 398, 143 Pac. 1104. STRINGER v. MEESE et al. (No. 25131.)* (Supreme Court of Kansas. Nov. 10, 1923.) (Syllabus by the Court.) Master and servant 405 (4)-Death from pulmonary hemorrhage shown to be result of accident "arising out of and in course of employment," within Compensation Act. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Course A workman was employed as a sludge man in the mill of a lead and zinc mine. While making some ordinary repairs about the mill. [14, 15] A suit for reformation is an appeal which was a part of his duty, he suffered a to an extraordinary power of a court of equi- hemorrhage of the lungs, from which he died ty. We should scrutinize the clause sought to in a few minutes. Three years prior thereto he be inserted in the writing, and consider its had the influenza, which weakened his lungs So that he coughed and spit up phlegm at night. equitable or inequitable features. What is asked is for all practical purposes a require- ened condition of his lungs the exertion of his There was medical evidence that in the weakment that Lennon's, the lessee, do business work might have caused the hemorrhage. Held on the premises for the term of the lease, 10 sufficient to sustain a finding that his death years. Defendant Berg, who made the ne- was the result of an accident arising out of and gotiations for Lennon's, testified to the effect in the course of his employment under the that he would not, and that no reasonable Workmen's Compensation Act. business man would, have made such an agreement; that the lease was written exactly as the parties agreed. The nonassignment of Employment.] clause in a long term lease, with no restriction as to the arbitrary power of the lessor to withhold consent to a subletting of the premises, does not appeal to the conscience of a court of equity. It appears that prior to subletting the premises the parties were careful to ascertain that the Sweet Sixteen Company was a responsible concern fully capable of carrying out the term of the lease and that the business in which they engage, in several cities, is no more hazardous than the business of Lennon's-in fact, is in a similar line, but more extensive-and that preparations have been made by the subtenant to greatly improve and beautify the building. The fact that the lessor appears to be satisfied with the new tenant, provided that the increased rental be paid to her, does not indi cate that the lessor has been injured by the change of tenants. On the other hand, the payment of the rent reserved în her lease will be more secure for the term of the lease. [16] Mrs. Dolph had a perfect right at the time the contract in question was made to insist on a nonassignment clause, and prohibiting or restricting the subletting of her premises, but before the matter would have become a contract the other contracting party would have had to assent to the proposition. The weakness of plaintiff's case in this respect is that she did not then insist, upon or suggest such a stipulation, and it was never made. It is too late for her to do so now. It follows that the decree of the trial court must be reversed, and the suit dismissed. It is so ordered. Appeal from District Court, Cherokee County; Frank W. Boss, Judge. Action by Anna Stringer against C. G. Meese and others, copartners, doing business as the Kansas Line Mining Company, to recover under the Workmen's Conmpensation Act for the death of her son, Edward Stringer. Judgment for plaintiff, and defendants appeal. Affirmed. A. M. Seddon, of Kansas City, Mo., and AL F. Williams and Don H. Elleman, both of Columbus, for appellants. I. N. Kuhn, C. B. Skidmore, and Fred Walker, all of Columbus, for appellee. HARVEY, J. This is an action brought by Anna Stringer against appellants to recover under the Workmen's Compensation Act (Laws 1911, c. 218, as amended by Laws 1913, c. 216) for the death of her son, Edward Stringer. The case was tried to the court, who found generally for plaintiff and against defendants, and found: "That on the 25th day of July, 1922, while working in the course of his employment in defendants' lead and zinc mine in Cherokee county, Kansas, Edward Stringer, a son of the plaintiff herein, received an injury, by accident, arising out of and in the course of his employment, which resulted in his death on the said date. Judgment was for plaintiff, and defendants have appealed. There is but little dispute about the facts. Edward Stringer was a widower, 43 years of MCBRIDE, C. J., and BROWN and Mc-age, who made his home with and supported COURT, JJ., concur. his mother, a widow, 71 years old. He had For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (220 P.) worked at different times about the mills of lead and zinc mines. Two or three years prior to his death he had the flu, and it had left him in a weakened condition. He had never been strong since having the flu. He coughed some of a morning before getting out of bed, and he would expectorate upon a paper beside the bed. That condition had existed for nearly three years. His sister had observed the sputum. There was no blood in it, but it was white. On the date of his death he was employed as sludge man in the mill of appellants' lead and zinc mine. He had worked there only a few days; prior to that he had not been working steady. Just what took place was told by Walter Covert, who was a helper in the mill and working with him at the time of his death, as follows: "He had been working the mill, and the gas went off, and they shut down, and the mill foreman says: 'You and Ed go down in the mill and take out that old flume from that screen and put in this new one.' He went down ahead of me and took the tools, you understand, under the mill, and Cash and I carried the new flume down there, and then Cash went out. When I got there, he had the old flume torn out. He said that he would have to do some sawing on it. He got his rule and measured it, and came back and took the square and marked it off, and he was setting on the new flume, and then he picked up the saw and started to sawing; then he gave a kind of a hacking cough. I didn't pay much attention to him at first. The flume he was sawing was made out of bottom and two sides of 1x6 timber, a sort of trough. He started to saw the flume and didn't finish it. I heard him give a cough, and I didn't pay much attention at that time. He picked up the saw again and then I heard him cough again, and when I looked around I saw a spurt of blood, and then he coughed the third time, and he took out his teeth and leaned up against the foundation of the mill and stood there a minute, and then he turned and went out and up the stairway, and that was the last I saw him until afterwards. At the time he stood up and leaned against the foundation, I saw him split up blood. I supposed it was ten minutes after this that I again saw him. He was dead when I got up there. At the time I heard Ed cough he had not been sawing very long. I don't know, possibly a minute, not over that. He had sawed not to exceed one inch. He was using a common handsaw that carpenters use." It seems reasonably clear that his death resulted from hemorrhage of the lungs. The only question presented to us is: Does this evidence support the finding and judgment of the trial court that his death resulted from an injury received by (a) accident, arising (b) out of and, (c) in the course of, his employment? He was working for appellants at the time; hence what occurred arose "in the course of his employment," for that phrase "simply means that it happened while he was at work in his employer's service." Cox v. Refining Co., 108 Kan. 320, 322, 195 Pac. 863, 864 (19 A. L. R. 90). It was an undesigned, sudden, and unexpected event, and hence was an accident, within the meaning of the Workmen's Compensation Act. C. J. Treatise on Workmen's Comp. Act, p. 64; Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793; Baggot Co. v. Ind. Com., 290 Ill. 530, 125 N. E. 254, 7 A. L. R. 1611, note on Hemorrhage as an Accident, 7 A. L. R. 1614. The question remains: Did the injury arise "out of his employment"? This requires that there must be a causal connection between the work which is being performed or the conditions under which it is performed and the resulting injury before the employer shall be liable. In Cox v. Refining Co., 108 Kan. 320, 323, 195 Pac. 863, 865 (19 A. L. R. 90), it was said: "But in order to charge the industry with compensation for the workman's injury, such injury must in some sense, in some degree, be due to the workmen's employment in the industry." (Citing authorities.) The medical testimony of the case was as follows: Dr. Dodson was called and found Stringer dead. He saw signs of blood over some of the planks and on the ground and around where he was lying. The blood could have come from a ruptured blood vessel in the lungs or from the stomach. A pulmonary hemorrhage might be caused from a diseased condition of the walls of the blood vessels from different sources and causes. The immediate cause of the rupture might be several things. "Violent exercise would be one, heat would be another. * Anything that would create a rapid circulation, you might say. An excessive flow of blood through the blood vessels might cause them to rupture. "Q. Would the sawing of the end of a board trough six inches square, made out of 1x6 timber cause an increased circulation of the blood? A. If done rapidly, and continued for any length of time, it would; yes. "Q. Suppose a person had had the flu three years before, and from time to time thereafter spit up substances from the lungs and complained of a hurting in the lungs down to the time of the work in question, and he was sawing on a board or trough made of 1x6 timbers or planks, for a minute's length of time, would you say that a person, under those conditions and doing that kind of work, could sustain a hemorrhage of the lung? A. He could. "Q. Would that work of sawing there with a handsaw, a person with the condition I have described, would he be likely to suffer from a hemorrhage? A. Under healthy conditions, he would not. Under other conditions, he might. "Q. Would he, under the conditions I have described? A. It might do it; yes." He also stated that the ravages of the disease itself causes hemorrhages at various times without any intervening cause; though a person might be sitting down or lying still, a hemorrhage is more or less likely to come on at any time with the lungs in the condition described without any intervening cause. He could not say whether the hemorrhage in this instance was caused by the exercise or not. "Q. It could have been? have been." Dr. Janes: creased blood flow? A. The blood pressure; "Q. An increased blood flow causes pressure? A. As a rule; yes. "Q. And, under the circumstances described, it is your judgment that the exercise there from the sawing is the thing that increased the blood flow and caused the rupture of the blood A. Yes; it could vessel? A. It very likely was a factor in it." It is evident the trial court regarded this evidence as bringing the case within the rule announced in Gilliland v. Cement Co., supra, where it was said: “Q. Have you a judgment as to what would bring on the hemorrhage? A. A rupture of the blood vessel, of course. "Q. And what would be the cause of that? A. A weakened condition of the wall. "Q. Would the exercise in sawing bring on the rupture? A. If in a weakened condition; yes. "Q. And where death followed immediately, would it be your judgment that there was a A. Yes. weakened condition beforehand? "Q. I will ask you, Doctor, if as a matter of experience and learning, men do die from a hemorrhage brought on by violent exercise? A. Yes, sir. "Q. Would the exercise of sawing with a handsaw be sufficient, if there was a weakened condition of the lungs, to bring on a hemorrhage? A. If the lungs were sufficiently weakened, as a matter of fact it would; yes. Dr. Brookhart, after a hypothetical ques tion stating the circumstances, testified: "A workman's employment required him to break rock in a quarry with a 16-pound sledge and load the rock into a car, which was hard At noon he was in apparent good work. health and spirits, and ate all of the lunch which his wife brought to the quarry for him. In the afternoon, while at his working place, and shortly after he was seen beating a large rock with his sledge, he suffered a pulmonary hemorrhage, from which he died before medical aid could reach him. He had been working in the quarry for several months, and before that had worked for three years in the sacking department of a cement plant, an exceedingly dusty place. Held, the facts stated indicated injury by accident, and injury arising out of the employment, within the meaning of the first section of the Workmen's Compensation Act." And in the opinion, 104 Kan., at page 778, 180 Pac., at page 796, it was said: "Q. Where a man was engaged in sawing with a handsaw for about one minute and coughed and spit up blood and a hemorrhage followed, do you have a judgment as to what "The defendant insists that the workman the cause of that hemorrhage was? A. I would assume the exercise was the immediate died of disease; that is, the injury did not arise of the employment. The question was one of cause." fact, and should have been submitted to the It is not material that the workman's jury. blood vessels were weakened by disease, or that he was predisposed to hemorrhage because, for example he had breathed the dust of the sacking department for three years. The statute establishes no standard of health for workmen, entitling them or their dependents to compensation, and if the added factor of physiIcal exertion in the employment were required to effect the lesion, and did so, the injury arose of the employment. That the injury occurred in that way, and is referable to a definite time, place, and circumstance, is indicated by the workman's apparent good health and strength, the suddenness and profusion of the hemor rhage, the absence of previous extravasation of blood, and other circumstances." "Q. Have you a judgment, under the statement of facts I have given you, as to what produced or brought about that hemorrhage? A. A rupture of the blood vessel within the lung cavity from the coughing could be caused from the sudden exertion. "Q. Would the exercise incident to the sawing with a handsaw on the trough, under the conditions and circumstances I have described, be sufficient to produce the hemorrhage? A. It could have done it; yes. "Q. Under the state of circumstances as described to you in my former question, where the deceased party was actually sawing for a minute's time or approximately so, and coughed and spit up blood with the first cough, have you a judgment as to whether the exercise incident to that sawing, or whether the exercise from the coughing, would be the thing that A. The exercise may caused the rupture? have produced the hemorrhage and caused an irritation that caused the cough. It probably was the irritation of the broken vessel that caused him to cough and spit-any sudden exYou sometimes have a ercise might do that. hemorrhage from sudden exercise and you have it when you don't exercise, so that it is impossible for any one to say certain, but we know that the majority of hemorrhages come 'following exertion. The following cases also support this rule: Baggot Co. v. Ind. Com., 290 Ill. 530, 125 N. E. 254, 7 A. L. R. 1611, where there was a rupture of the aorta by increased blood pressure due to the effort of a workman in operating a windlass to lift a heavy weight in the regular course of his employment. Southwestern Surety Ins. Co. v. Owen (Tex. Civ. App.) 198 S. W. 662, where an employee, while lifting heavy cans of paint, strained himself and caused a blood vessel to burst in his lungs. Clark v. Lehigh Valley Coal Co., 264 Pa. 529, -107 Atl. 858, where an employee, "Q. It is the exercise that causes the in- while engaged in his work, died from a rup |