Olsen v. Peregoy & Moore Co. ( 1917 )

Salinger, J.-

I. The plaintiff is not seeking damages suffered because the wrong of the defendant gives plaintiff an unenforcible lease. The vital position taken in his petition is that, because of certain things which he claims estop the defendant from urging the Statute of Frauds, plaintiff has a valid and enforcible lease; and, among other things, he asks that he be given a landlord’s lien. We have held that part performance will not take an oral lease for more than one year out of the Statute of Frauds. If estoppels shall be given the effect which plaintiff seeks for them, it will often be difficult to separate the estoppel from part performance. The increased use of the estoppel will be apt to put us into the position of seeming to hold in one case that the lease is not enforcible, or rather, not competently provable, and upon quite similar facts, that it is. But see Hunt v. Coe, 15 Iowa 201; Thorp v. Bradley, 75 Iowa 50. We are not passing on whether an estoppel may ever be available in cases like this, nor are we passing in any way upon Halligan v. Frey, 161 Iowa 185. We are pointing out the difficulties raised by the position of plaintiff as our reason for not entering into that field unless we find that no other course will rightly determine the suit.

The paper upon which plaintiff bases his contract rights is not signed by anyone. Purporting to be a lease for a term longer than one year, it is not provable unless the making of such a lease is admitted in pleading (and it is not), or unless the party who denies the contract is made a witness, and his testimony establish the making of the contract. Code Sections 1625, 1627, 1628. If this has been done, there is an end, and the action below must be sustained. Has there been such establishment? While, where the person sought to be charged is called, what he says is conclusive, that does not mean that the contract is established, only, where he admits in terms that it was made. While his testimony may not be added to or contradicted, its effect is to be tested by the ordinary standards; and, if a fair consideration of what is said by defendant, and what is justifiably to be deduced therefrom under the conditions disclosed by the record, tends to prove the asserted contract, that establishes such contract. See Merchant v. O’Rourke, 111 Iowa 351, 355; Marks v. McGookin, 127 Iowa 716, at 718; Byerlee v. Mendel, 39 Iowa 382, at 385; Smith v. Phelps, 32 Iowa 537, at 539; Dewey v. Life, 60 Iowa 361.

What is there in the record which may fairly be termed evidence drawn from the defendants? Whatsoever is testimony of a general officer of the defendant, and any exhibit put in by defendant, is, so far as relevant, of course, available to prove the contract. The only thing that is debatable on this head is whether' checks issued by defendant and put in by plaintiff is testimony of the defendant rather than an admission of defendant made out of court, which has become testimony, but not testimony given by defendant. Now, a general officer of the defendant testifies as its witness, in effect, that these checks were made to pay rent to plaintiff. It was admitted on the trial that this general officer issued these checks, and it appears from testimony put in by defendant that this officer had authority to issue such checks. We are of opinion that, when plaintiff put these checks in evidence, they became the equal of testimony of defendant, proving that defendant had issued them. It is shown by the evidence, given by defendant that it was advised Maxwell had orally agreed with plaintiff that defendants should become the tenants of plaintiff at a rental of $250 a month, for a term beginning about June 15, 1914, and ending in 1919, when the lease held by plaintiff would expire. It appears that whatever defendants did was addressed to that oral arrangement to lease. We have held the evidence for defendant shows it issued checks to plaintiff for rent. As there was but one thing to pay rent on, it is, therefore, established by the evidence of defendant these were issued to pay the rent stipulated in the oral arrangement upon which plaintiff declares. Defendant sent this rental, as stipulated in said oral arrangement, and for one year. This it explains by testimony that it did so because, on consultation with a lawyer, it was advised that the defendant “was there and would have to stay for a year under the Iowa statute;” and its manager testifies that “therefore we was stuck for a year anyhow, it seemed,” and “that was the reason” for sending the checks. This, to be sure, is a denial that the oral agreement bound defendant for more than one year, but is none the less an admission that Maxwell made the oral contract sued on, and for defendant. If defendant had been of opinion that Maxwell had no authority to contract on its behalf, it owed no rent for any period. Testimony by defendant that it paid rent, as stipulated by Maxwell and Olsen, knowing of the stipulation, is, since Maxwell stipulated only in the agreement sued on, an admission on the trial that Maxwell and plaintiff made that oral agreement. That admission takes the case out of the Statute of Frauds. That is not the less true because defendant urges that the contract made for it by Maxwell bound it for no longer than a year. Such claim is not a denial that it made the very agreement sued upon. It is an admission that the agreement was made, and was the contract of defendant, coupled with a claim that it was bound to perform it for but one year. It is nowhere claimed by defendant that, while Maxwell had the power to make a lease with plaintiff for one year at $250 a month, he had none to make such lease for longer than one year. Therefore, it admits Maxwell had authority to make, and, therefore, defendant made, the lease for longer than a year, but with the admission claims that the law terminates it at the end of one year. It needs the admission of defendant to establish that it made the oral lease sued on. Once having admitted that much, the law will settle, without admission by defendant, what the legal effect of the admitted lease is. An oral lease for more than one year is either wholly within the Statute of Frauds or not at all. Admit such a lease was made, and it admits all of it was made. An admission that an oral lease was made for a term of five years can never be whittled to an admission that it is a lease for one year that was made.

1-a.

If that were not so, it appears further, and by the evi, deuce of defendant, that checks were sent to cover the rent up to and including February, 1916, for some eiglit months after a year of the lease period had passed.

Defendant’s exhibits include letters written by defendant to plaintiff, and one written by it to Maxwell — all written after more than a year had passed since the lease was made. The first admits defendant then has space in plaintiff’s store on such terms as that a change is necessary to put the occupancy “on a percentage basis for rental.” On October 12, 1915, it writes, in an attempt to reduce the stipulated rent, that what it has been paying up to that time is a rental of $250 a month. On November 1, .1915, in connection with a like attempt, it writes that it sends $250 “in payment for October rent.” On November 23, 1915, it wrote Maxwell to urge plaintiff to make a change, and to advise because “we want to know before the first, as we pay rent at that time.” Finally, defendant wrote plaintiff, February 1, 1916, enclosing $1,000, “in payment for rent of space occupied in your premises for the months of November, December, January and February.

Here, then, are admissions that establish the existence of the agreement which plaintiff claims, not only to June 1915, one year after the agreement was made, but up to March 3, 1916. We can see no escape from the conclusion that the testimony given by and elicited from defendant proves that, by one either originally authorized, or whose acts were duly ratified, defendant made the oral lease asserted by plaintiff. It follows that the trial court was right in enforcing that agreement, though it was not reduced to a signed writing, and is a lease for more than one year.— Affirmed. ,.

Gaynor, O. J., Ladd and Evans, JJ., concur.