Handy v. Barclay ( 1922 )

Upon his assignments of error above noted, appellant makes the following claims: that a parol lease for more than a year is valid if sufficient evidence is offered to satisfy the statute of frauds, and that the Exhibits A and B, appearing in the above statement, furnish satisfactory evidence. As subsidiary to this claim, it is further contended that the agency of Cummings for the other appellees could be established by parol, and hence the demurrer was bad as to all the appellees; that the assignee or lessee of a cotenant in possession cannot be ousted by a cotenant, and hence the demurrer to the fourth defense was improperly sustained.

Had the lease for fourteen years of the premises in question been in writing, it would have been good and would have bound the lessors at least until the death of Cummings, who was a life tenant of an undivided interest. All parties having a present interest were lessors. The lease was in fact oral, and hence, after occupation thereunder, by operation of law become a lease from year to year only, implied by law, unless it was sufficiently evidenced by the receipts, Exhibits A and B, to satisfy the requirements of the statute of frauds. Larkin v. Avery, 23 Conn. 304; Lockwood v.Lockwood, 22 Conn. 425, 432; Corbett v. Cochrane,67 Conn. 570, 35 A. 509; Griswold v. Branford, 80 Conn. 453,68 A. 987; Boardman Realty Co. v. Carlin,82 Conn. 413, 74 A. 682; Brodner v. Swirsky, 86 Conn. 32,34, 84 A. 104.

We have now to consider whether Exhibits A and B are in their terms sufficiently full and exact to take the oral lease from the operation of the statute. The memorandum of the contract need not be the contract itself, but must contain sufficient data whereby a contract satisfying the terms of the prior oral agreement of the parties might be put in extended and customary form, without the aid of oral proof. Shelinsky v. Foster, 87 Conn. 90, 87 A. 35; Gendelman v. Mongillo,96 Conn. 541, 114 A. 914. The memorandum may, as in the instant case, take the form of a receipt.Evans v. Prothero, 1 De Gex, M. G. 572; Ellis v.Deadman's Heirs, 7 Ky. (4 Bibb) 466; Barickman v.Kuykendall, 6 Blackford (Ind.) 21; Williams v. Morris,95 U.S. 444; Sholovitz v. Noorigian, 42 R. I. 282, 289,107 A. 94; Browne on Statute of Frauds (5th Ed.) § 346; 27 Corpus Juris, p. 258. The memorandum need not be made at the time of the contract; it may be made and signed afterward. "It is not necessary that the writing by which the contract is to be evidenced should have been executed simultaneously with the making of the contract; any writing, contemporaneous or subsequent, in which the party to be charged admits, over his signature, all the terms of the contract insisted upon by the opposite party, is sufficient. ``The moment written evidence of the contract under his hand, in whatever form, exists, the contract is taken out of the statute. . . .'" Capitol City Brick Co. v. Atlanta Ice Coal Co., 5 Ga. App. 436, 443, 63 S.E. 562, citing Wood on Statute of Frauds, § 334. See also Jacobson v. Hendricks, 83 Conn. 120, 125, 75 A. 85; Williams v. Bacon, 68 Mass. (2 Gray) 387; White v. DahlquistMfg. Co., 179 Mass. 427, 432, 60 N.E. 791; Kittel v.Stueve, 10 Misc. (N. Y.) 696, affirmed without opinion in 146 N.Y. 380, 41 N.E. 89; Browne on Statute of Frauds (5th Ed.) § 352a; 27 Corpus Juris, p. 263. The claimed memoranda, therefore, are not inefficacious by reason of their form or date. It remains to be seen whether Exhibits A and B are sufficiently complete and definite to comply with the rule above stated. A definite contract of lease, besides the names of the parties, contains a description of the property let, the term of the lease and the amount of the rent.Garber v. Goldstein, 92 Conn. 226, 102 A. 605. It should also contain the terms of payment of rent. The exhibits above referred to do not measure up to this standard, in that the amount of rent or the times of its payment are not contained therein, and hence do not satisfy the requirement of the statute. The holding of appellant therefore became a tenancy from year to year, and expired February 28th, 1922.

The appellant on the date last named was the tenant of all of the owners having present interests in the leased property. There were no dissentient cotenants, nor was there any attempt on the part of one cotenant to disseize another. The case, therefore, does not come within the rule of Pastine v. Altman, 93 Conn. 707,107 A. 803. The appellant's lease had expired and he was due to go out unless by some agreement or course of conduct equivalent thereto his tenancy had been recognized by the owners of the property for a further term of one year. City Coal Co. v. Marcus, 95 Conn. 454,111 A. 857.

The above holding as to the effect of Exhibits A and B removes from the case the contentions of appellant as to agency, disseizin of a cotenant, and the effect of a demurrer by several where the same is bad as to one demurrant.

There is no error.

In this opinion the other judges concurred.