A. G. Rhodes Furniture Co. v. Weeden , 108 Ala. 252 ( 1895 )

HEAD, J.

Whether a parol lease of land for the term of one year to begin in futuro offends the infra an-num clause of the statute of frauds, is a question upon which the American courts are not agreed. — McCroy v. Toney, 66 Miss. 233, 5 So. Rep. 392. More than thirty-five years ago, this court held such a contract to be within the operation of that clause of the statute, and the decision has been subsequently followed as the proper construction. — Cromelin v. Theiss, 31 Ala. 412 ; Parker’s Admr. v. Hollis, 50 Ala. 411 ; Oliver v. Ala. Gold Life Ins. Co., 82 Ala. 417 ; White v. Levy, 93 Ala. 484. In none of the cases just cited., did it become necessary to consider, whether part performance, by letting the lessee into possession, and payment, or part payment, by him of the rent reserved, took the contract without the influence of the statute. — Code § 1732, sub-div. 5. This exact question, however, was presented .and decided in Martin v. Blanchett, 77 Ala. 288, where it was ruled, upon the authority of the leading case of Shakespeare v. Alba, 76 Ala. 351, that such part performance “operated to impart validity to an agreement oihei wise void, because not in writing an l signe 1 by the party sought to be charged.’ ’ To the same effect, is the recent case of Eubank v. May & Thomas Hardware Co., 105 Ala. 629. It must now, therefore, be considered as definitely settled in this State that whether the parol lease be for more than one year, or for one year to begin at a future date, taking possession under the contract and part payment of the rent will render the agreement in all respects as valid as if it had been reduced to writing, and duly, signed by the parties. The leases for one year, which by the terms of subdivision 5 of section 1732 are excepted from the statute, in any event, must, in view of subdivision 1, and our uniform construction thereof, be c mined' and limited to such.as begin in presentí and extend one year from the making thereof. So also,'must it be held that-part performance in the manner stated .in '.the ..concluding part of subdivision 5-, will operate to save every pa-rol lease of land, otherwise válid, from the', vitiating effect of the statute, whether by its terms, the enjoyment of the demised premises is to begin in presentí or in futuro, and no matter whether the period of the lease be one year or twenty, the statutory limit. — Code. § 1836. This is the necessary result of our decisions upon this statute.

In Garner v. Ullman, 99 Ala. 218, the affirmance of the judgment of the lower court in favor of the plaintiffs was rested upon and required, by the presumption, which appellate courts a.re accustomed to indulge, in favor of the judgments of subordinate tribunals, brought to them for review, since the trial was without jury, and. the bill of exceptions did not purport to contain all the evidence. The statement in that case that the'rental contract, according to the plaintiff’s evidence, was void under the statute of frauds, was undoubtedly correct, if reference was made to the time of agreement; the court, however, in stating the effect of the plaintiff’s .version, overlooked the fact which also appeared, that there had been part performance by a taking possession and paying several months rent. To avoid any further misleading tendency of the case just cited, we will also say, that the opinion failed to take account of the rule as to notice, required to terminate a tenancy from month to month, recognized in McDevitt v. Lambert, 80 Ala. 536, as existing in this state, in stating .that the defendants had the right, according to their version of the contract, which made the case of a renting by the month, for an indefinite period, to terminate the tenancy, at the end of any month, and to relieve themselves of further liability by paying all they owed up to that time. It is evident the court did not give that consideration to' these questions it would have done, had their decision been necessary to determine the fate of the appeal, and hence the statements, to which we have referred, must be regarded as inadvertent dicta. It was not intended thereby to overrule the established line of authorities upon the questions to which we have referred. If the jury believed the evidence of the plaintiffs in this case, the rental contract was made in June, 1891, for a term of one year, to begin September 1st following; and, although. void- when made, complete validity Was imparted to' it iyheü the; defendant went into possession and-, paid the first month’s rent. This established the' defendant as the-tenant-of the-plaintiffs, for the-term of- one year, . ad stipulated in the contract.,, At the' end o'f the- term it became tbe duty of the tenant to vacate the premises. If it failed to do so, and held over without making a new arrangement, the landlord-had the election to treat the continued occupancy as a tenancy for another year, on the same terms and conditions as were agreed in the express contract for the previous term. — Robinson v. Holt, 90 Ala. 115 ; Wolfe v. Wolfe, 69 Ala. 549. Under this view, when the tenant became vested with the term, a recovery of the rent for the entire term may be had, although it may appear that the tenant quitted the prem-. ises long before the term expired. — Crommelin v. Theiss, 31 Ala. 412. The court, therefore, properly declined to give the affirmative charge for the defendant. Charges 2, 3 and 4, requested by the defendant, were in conflict with the foregoing principles, and were all well refused. The developments of the trial show that defendant had full benefit under the general issue of the matter, setup by the special plea, ami hence the sustaining of the demurrer to that plea could in no wise have done it injury. The defendant’s own evidence shows that it went into possession under the contract of renting and -paid the rent, monthly, for a year. This obviated any defense which could possibly have been made under the special plea.

The defendant was a corporation organized under the laws of Georgia, conducting a branch furniture store in Eufaula, with J. T. Smith in charge of the store as the only agent there. The rental of the storehouse, in which the business was to be conducted, was evidently within the apparent scope of his authority, as general agent having control and direction of the business. It is a matter of common knowledge that storehouses are not usually rented for a shorter period than a year, and a rental contract for that period was within the customary mode of conducting such business. We do not think the plaintiffs could be affected by secret instructions to the general agent of which they had no notice. The court committed no error in refusing to allow proof to be made that the general manager of the defendant company had directed its said agent at Eufaula to rent from the plaintiffs by the month only. — Singer Mfg. Co. v. McLean, 105 Ala. 316 ; Wheeler v. McGuire, 86 Ala. 398.

The question propounded to the witness Dent, on cross-examination, was confessedly not designed to elicit any fact relevant to the issues in the case, but only to test the accuracy of his recollection. Aside from other reasons that might be given to justify the ruling disallowing the question, it will be sufficient to say, that the range, which a cross-examination of this character may take, is left to the sound discretion of the trial court, with the exercise, of which we do not interfere. — Tobias v. Treist, 103 Ala. 664 ; Noblin v. State, 100 Ala. 13.

There is no error in the record, and the judgment is affirmed.