Wallace v. Scoggins , 18 Or. 502 ( 1889 )

Steahan, 3.

This is a suit in equity whereby the plaintiff seeks the specific performance of a parol lease of certain premises situated in the city of Portland. In her complaint ihe plaintiff, in substance, alleges that on or about July 1, 1888, the plaintiff rented from the defendant the property in the city of Portland known as No. 247 Alder street, for the term of two years, at the rent of foity dollars per month; that about the time said lease was made, and in pursuance thereof, plaintiff entered into the possession of said premises; that she cut and fitted expensive carpets for the house, painted certain portions of the inside thereof, and expended a large sum of money in fitting up said house to be used as a residence during said two years; that she purchased and placed in the cellar of said house a large quantity of coal and wood for her winter’s supply, and that she regularly paid the rent at the end of each month, and has fully performed the contract of lease on her part; but that the said defendant, under the pretense that said.lease was not in writing, commenced a suit against this plaintiff before B. B. Tuttle, a justice of the peace in Multnomah county, for the unlawful detainer of said premises, and prays that said contract of leasing may be specifically enforced, etc. The answer denies most of the allegations of the complaint. The case being at issue was referred to Hon. Raleigh Stott to take the evidence and report the same, together with his find ings of fact and law thereon, to the court. He found the facts to be substantially as alleged in the complaint; but found as a conclusion of law that the renting was valid for the term of one year, and therefore, that the plaintiff had an adequate defense to the action of unlawful detainer, and he consequently reported for the dismissal of the suit.

Exceptions were taken to the report by each of the parties. The plaintiff moved to confirm the report, except the conclusion of law. The defendant moved to confirm all of the report except the first finding of fact, which is to the effect that the plaintiff had rented the house from the defendant for the term of two years at a monthly rental of forty dollars, for' her residence. The court below sustained the plaintiff’s exceptions and overruled those of the defendant, and entered a decree specifically enforcing said contract against the defendant, from which he appealed to this court.

1. The first question presented for our consideration is one of fact. Did the defendant lease said property to the plaintiff on the terms alleged in the complaint? After a careful reading and consideration of all the evidence in the case on this subject, I think this question must be answered in the affirmative. The plaintiff testifies to the facts and circumstances intelligently and distinctly, and she is corroborated in her statements by other evidence. In addition to this, the facts and circumstances attending her occupancy tend very strongly to corroborate her; on the other hand the defendant’s denials are uncertain and equivocal. It is true he makes the denial when forced to it by the direct interrogatory of his counsel; but when left to himself the inference becomes very strong that the defendant bases his denial on the fact, not that the plaintiff did not enter into a parol agreement with him for the lease of the premises for two years, but on the ground that the lease was not in writing. His remark to Mr. Williams was: “She didn’t get a lease;” and on another occasion he said: “She had no lease for the house.”.

2. But this contract not being in writing, and being for a lease for a term exceeding one year was, under §§ 781, 785, subdiv. 6, Hill’s Code, ineffectual at law to create such title or interest as the plaintiff claims under it. • But the plaintiff alleges part performance of said agreement on her part, and relies upon that to take the case out of the oiieration of the statute, and to that aspect of the case our attention must be directed.

8. It appears from the evidence that the plaintiff, with the consent of the defendant, entered into the possession of said premises pursuant to said contract about the first of July, 1888, and continued to reside there, without objection from the defendant, until about the month of November, during which time she paid the defendant the rent stipulated by said agreement. At the time, or soon after she took possession of said premies, the plaintiff caused some shrubbery, rose bushes, and the like, to be removed to said premises and planted in the yard; she purchased some expensive carpets and had them cut and put down in the rooms; she caused considerable paper-hanging and painting to be done about the house, and enough coal and wood to be placed in the cellar to last her during the winter next ensuing after her occupancy commenced. In short, she did everything that a tenant would have done who understood that his occupancy was for a greater length of time than from month to month.

Do these acts, as part performance of this lease, on the part of both parties to it, entitle the plaintiff to have the same specifically enforced? I think they do. They are substantial on both sides, and go to the substance of the contract, and it would hardly be possible, to restore the plaintiff to the condition she was in before the acts ware performed. Relying upon the terms of the parol agreement, she incurred expenses and changed her circumstances and condition to such an extent that a refusal on the part of the defendant to perform operates as a fraud on the rights of the plaintiff. As I understand the rule, this is such a part performance of the parol agreement as takes the case out of the operation of the statute of frauds. Arnello v. Edinger, 10 Cal. 150; Hotchkiss v. Downey, 2 Day, 225; Wilde v. Fox, 1 Rand. 165; Kidder v. Barr, 35 N. H. 235; Hawkins v. Hunt, 14 Ill. 42; Johnson v. Hubbell, 2 Stockt. Ch. 332; Eyre v. Eyre, 19 N. J. Eq. 102; Putnam v. Hattey, 24 Iowa, 425; Kay v. Watson, 17 Ohio, 27; Waterman on Specific Performance, § 257.

4. Upon the argument counsel for the appellant insisted that though we might be satisfied that the parol agreement was made as alleged, and that there had been such part performance as would take the same out of the operation of the statute of frauds, still this is not the kind of a case in which a court would decree a specific performance, and that the plaintiff must fail for that reason. But in this I think the-counsel is mistaken. Pomeroy on Specific Performance, § 101, says: “As the statute speaks of lands ‘or any interest in or concerning them, ’ contracts to lease are both included within its terms, and are capable of being part performed, so as to be taken out of the operation of the statute and made enforcible in equity. In most of the American statutes all possible doubt upon this point has been removed by adding a clause to the section concerning lands which expressly includes agreements to lease for u time not exceeding one year. ” This provision is found in our own statute. § 785, subdiv. 6, Hill’s Code; Taylor’s Landlord and Tenant, § 32. But it is useless to follow the subject; the authorities are uniform in favor of the rule I have stated.

5. The finding of the learned referee,' to the effect that plaintiff’s parol lease was good for a year, and therefore she had a good legal defense to the pending proceedings of unlawful detainer, did not go far enough. Her rights rest upon a more substantial equity than a defense to that proceeding. It is right to have the parol agreement specifically enforced by a decree, so that the same shall be fixed and certain, and that she may not again be subject to be harassed and vexed by such a petty proceeding.

The decree of the court below was right, and the same is affirmed.