Stauffer v. Hartz , 1920 La. App. LEXIS 110 ( 1920 )

Mrs. K. L. Stauffer & al vs Mrs. S. E. Hartz, Appellant.

Ho. 8043

Appeal from Civil District Court, Hon. 3. K. Skinner, Jutee.

CHAr’I'?S F. CUIBOR'J'S, JUDOE.

Thi3 is an ejectment suit.

Petitioners aver that their iiiother, Mrs.Maury, leased to defendant, 7/idow C. E. Hartz,the preraises Ho.1312 First Street for a terra of twelve months, commencing on October 1st, 1919 and ending on September 30th, 1920; that their mother died July 6th, 1920 leaving petitioners as her only heirs; that they gave to Mrs. Hartz legal notice to vacfete said premises at the expiration of her lease, which she has failed to do; they pray for judgment condemning the said Mrs. Hartz to vacate said premises and to deliver possession of the same to them.

For answer, defendant admitted the lease and the notice to vacate; she averred that she„did not vacate in accordance with said notice because she has a valid lease to September 30th, 1921, and that she is entitled to remain in said premises up to that date; she further averred that

"on or about August 12th, 1919, she rented the premises 1312 First Street from October 1st, 1919 to September 30th, 1920, through Leo Fellman, agent of lirs. J.H.Iiaury, for $85 a month; that about July 7th, 1920 she received notice from said Fellman that the rent for a new lease had been fixed at $100 a month, said Fellman, agent, at the same time, requesting her to remain as tenant; that she accepted the terms proposed to her, and on or about July 8th, 1920 signed leases in duplicate, renting said property from October 1st, 1920 to September 30th, 1921; that she signed and executed rent notes in accordance with said leases, all as prepared by said Fellman, so acting as requested ; that this was done at the office of said Fellman, and said leases and notes were delivered to him and received by him as agent, it being agreed that he would promptly sign said leases and deliver one to defendant; that, thereupon, the agreement and contract between said Fell-man, agent, and this defendant was and became closed, and defendant left the office of said Fellman; that after defendant had signed said leases and notes and the same had been left with and accented by said Fellman, as agent, the latter was notified that said Mrs. J. H. Maury had departed this life and that the property in question was not to be leased; that said Fellman notified this defendant of said facts, but retained said leases and all of said rent notes which had been signed by this defendant; that in all said matters both said Fellman, as agent, and this defendant acted and were in good faith; that said contract of lease is and'was a valid contract and is binding upon the succession and heirs of said Mrs. E. H. Maury; that defendant files herewith, as part of this answer and return, a copy of said lease, marked "A B", and that defendant is entitled, under the law and under said lease, to hold and retain said premises, as tenant, until September 30th, 1921, subject to the terms and conditions thereof. "

Defendant also denied that plaintiffs were entitled to proceed' by summary process, and she prayed for judgment in her favor.

There was judgment for plaintiff, and defendant has appealed.

There is no dispute as to the facts; the only question is, do they establish a fenewal of the lease after September 30th, 1920Í

The documentary evidence establishes a .-lease to defendant by Leo Fellman, agent for Mrs. J. H. Maury, signed by Mrs. Helen D. Maury, ending September 30th, 1920; a notice to vacate addressed to Mrs.C. E. Harts, dated September 18th, 1920, and delivered September 20th, 1920.

The defendant offered in evidence a letter dated July 6th, 1920 signed Leo Fellman by Louis P. Eaves, addressed to lira. 0. E. Hartz, reminding her that her lease would expire on the last day of September, and that their client had fixed the rental at $100 per month under a new lease; expressing the hop9 that she would remain, and requesting an immediate answer.

Second; A lease dated July 8th, 1920 by Leo Reliman, agent for Mrs. J. H. Maury, to Mrs.Widow C. E. Hartz for the premises 1312 First Street for twelve months commencing October 1st, 1920 and ending September 30th, 1921 at $100 per month signed by Mrs.C. E. Hartz.

Third: A letter dated July 8th, 1920 addressed to Leo Fellmaaih the following words:

"Owing to the death of Mrs. James J. Maury, owner of the property Ho. 1312 First Street, rented through her daughters, Mrs. Randolph Lj^ons and Mrs. I. H. Stauffer, have decided not to renew the lease of this property, I, therefore, wish to notify you that they will withdraw this property from your hands for rental and sale temporarily. Kindly consider this as a formal notice of withdrawal.

Yours truly,

"Signed" I. H. Stauffer "

A fourth letter dated July 9th, 1920 addressed to Ur. I. H. Stauffer as follows:

"We hasten to acknowledge receipt of your favor of the 8th inst., and to say that a few days ago, pursuant to instructions received from Mrs. Randolph Lyons, We agreed to renew lease of the premises Ko. 1312 First Street at the additional rental of $100.00 per month, ccordingly leases were drawn by this office and have been signed by the tenant".

Yours very truly,

"Signed" Leo Fellman

by L. P. Eaves "

Mrs. Hartz testified that she had been occupying the premises 1312 since October 1918,' she leased them from Kr. Fellman through Mr. Eaves; she did not deal with Mrs. Maury; she dealth always with Mr. Eaves; on receipt of the letter of July 6th, she called on Mr. Eaves on July 8th. and signed two leases and twelve notes;, the next day she was notified by phone by Mr. Eellman that he had bad news and that he did not think he could close and send her the lease; this was the third lease Eaves had signed for her, for that property.

Louis P. Eaves ttestified that he was connected with Leo Eellman; he made the lease to Mrs. Hartz in 1919; he wrote the letter dated July 6th, 1920; in answer to the lbtter Mrs. Hartz phoned to him that she would call the next day; she called and signed the lease and the twelve notes; he did not sijpi the lease on account of the letter of I. H. Stauffer, husband of one of the plaintiffs, dated July 8th; but he answered the letter on receipt of it on July 9th; he had been notified by Mrs. Randolph Lyons to rent the property at $100 a month; Mrs. Lyons had not been acting for her mother prior to that.; he did not have written authority from Mrs. Maury or from either of the plaintiffs to sign a lease for them; he never signs a leas; without such authority; the usual form of authorization he requires is'.in these words printed at the top of the lease:

"I hereby authorize and empower my agent, Leo Eellman, with full power of substitution to enter into and sign, or if already signed, hereby ratify and confirm, lease reading as follows, bearing on property described herein, which property I own";

then follows, on the same page, the lease made by b@o Eellman; no such authority was given him to make the lease in suit to Mrs. Hartz from 1920 to 1921; at the tine he wrote the letter of July 6th, 'it was contemolated by him that a lease should be signed by Mrs. Maury.

At this moment Mrs. Hartz is recalled as a witness and she swears that Mr. Eaves did not tell her that he contemplated having the lease signed by Mrs. Maury.

Louis P. Eaves reealled continues: Mrs,Lyons‘phoned to him about July 1st, stating that her mother was quite ill; that they just returned from Mobile; and that she wanted to talk to him about the new lease for 1312 First Street; he advised, a new lease at $100 a month; she said 'she thought $100 fair, and that he

"shoíild clase the lease with the tenant for another year, that is all;"

he has had charge of the orooerty for the oast five or six years and has gone through the same procedure each year, pre-oaring the lease, and having the notes signed, and sending out the lease authorization and have it signed and conolete the lease; he does not sign any lease without a written authorization; he never received any written authorization in this case.

Mrs. Lyons testified that her mother, l,Irs. Maury, died July 6th, 1920; for about six months prior to her death she had been out of her mind; she had no authority to act for her mother; she nhoned to Mr. Eaves to find out if Mrs. Hartz was willing to pay $100 rental instead of $85; Mr.Eaves had a different impression of that conversation than she has; her idea was simply for him to find out if Mrs. Hartz would pay $100; she did not intend that a lease should be drawn up as she had no authority to lease, and her mother was not in a mental condition to do so; Mrs. Hartz paid her notes for the 1919 - 1920 lease in the '.Vhitney Bank, and the Bank turned the money over to them; Mr. Stauffer wrote that letter after full consultation with all of them, including her sister, Mrs. Stauffer.

Br. Randolph Lyons says that Mrs. Maury has been mentally ill since January 1920, and not in a condition to transact business; during that time her family had to manage her affairs and attend to her business.

I. H. Stauffer testified that the daughters of Mrs. Maury withdrew the tent money from the 'Vhitney Bank, and he sent it to Mobile to defray the exonnses of Mrs. Maury.

In denial of defendant's claim to a lease plaintiff gives two reasons: lo That Heilman was not authorized to make a lease, and 2o that inasmuch as it was contemolated that there should be a written lease there was no contract until the lease was written and signed by both oarties.

lo The evidence satisfies us that Heilman had authority to make the lease. He was a real estate agent; his business was that of renting property; the property had been nut in his charge for rent for several years; he had,leased it to the defendant the year previous; he was clothed, with aunarent authority to lease the property:

C. C. 3000(2969):

"Powe s granted to persons who exercise a nrofession, or fulfill certain functions, of doing any business in the ordinary course of affairs to which t.h»y are devoted, need not be specified,' but are inferred froi.: the functions which these mandatories exercise".

"The orineipal is bound by all the acts of his ageit within the scope of the authority which he hald him out to the world to possess". Henderson vs RRd., 3 Ct.App.,43.

"Where an owner has entrusted his oroperty to a general agent as a factor or consignee in the habit of selling such prooerty, he Í3 estoooed from claiming the oro-perty in the hands of ah innocent ourchnser". Moore vs Lambath, 5 A., 66.

See also 13 A., 453; 21 C.J.,1172, 1176.

But we think the testimony of Haves establishes that he was authorized to lease this property by Krs. Lyons, and that Mrs. Lyons acted with the knowledge of Hrs. Stauffer. A lease •need not be in writing.

C.C., 2683 (2653):

Leases may be made wither by written or verbal contract". The authority to make leases may therefore be verbal as well as written. Nor is it necessary to be an owner of orooerty to lease it. Any one in possession of property may assume the obligations of lessor by leasing property. C. C.,2681 (2651); C.C., 2682 (2652); 8 R., 211; 5 A., 36. The. olaintiffs, whfcther owners or not, having authorized the lease of the oronerty, cannot repudiate their action. Any title acruired by a vendor inures to the benefit of his vendee; so of a lessor.

The letter of I.H.Stauffer is an affin.iance of Fellman's authority to lease. It was written after consultation with all the owners, and with their knowledge and approval. He notifies 1’ellman th"t he withdraws the nrooerty from hifkhapds for rental because they have decided not to renew the lease. '.Te,therefore, conclude that Heilman was authorized to lease t; is property and that he did lease it, unless the si,'mature of himself or of the owners wa3 necessary to complete the contract.

2o In the early history of our Courts the jurisprudence was that a contract which was to be redueed to writing wa3 not complete until written and signed. 1 N.S., 420; 4 La., 80; 2 H. D., 1001; 2 L.D., 470; No.4; 28 A., 31; 30 A., 119; 115 La. , 810; 142 La., 569; 12 Ct.App., 366; 13 Corpus Juris 370 & 249; 116 La., 337.

But later cases have modified the stringency of the rule, and in them, the determinative question arose, was the verbal contract comolete before writing and signing? 24 A.,433.

If it was, the verbal contract was binding without the writing. 30 A., 50 quoting Zacharic 2 to 466 note; 30 A., 117; Carlin vs Harding, 10 La., 225; 52 A., 424; 116 La.,338.

If it was not, then there was no contract until the minds of the parties met in a writing signed by both. 28 A., 33; 30 A., 321; 2 Tropling Louage No.106; 1 Duvergier No.167; 45 A., 530; 52 A., 424; 106 La., 309; 51 A., 1729.

In the Woodville case, 115 La., 810, the Court said on p 814s

"the point is that something wore is to be done before the contemplated contract is to be considered completed".

After a careful examination of the authorities, this Court in De Soto Building Co. vs Kohnstarn No. 7627 wrote this syllabus:

"A verbal agreement between t>artie3 where their minds have met upon all essential details constitutes a contract between their; and binds them at once, although they may have agreed that they would thereafter execute a formal instrument containing the terms of their present agreement unless it appears that it was"the will of the parties that they should be bound only if and when the formal instrument was executed".

This opinion was in line with Laroussini vs Werlein, 52 A., 424, end other cases cited above.

In the De Soto Building case only the temp of the lease had been agreed on; but no lease had bee^sianed. In the case under consideration, the lease had been simed by th^, defendant (!W-/ 2-sfl*rÓ¿¡- ,* - - upon a blank form supplied by Leo Fellnan^.It contained all *A save the signature of the lessor. The contract was not de-pendant upon that for its comoletion, and constituted therefore a perfect lease without the written and signed lease.

The judgment is therefore reversed and it is now ordered that there be judgment in favor of defendant rejecting plaintiff's demand at their cost.

Judgment r§versed.

December 6th, 1920.