Hall v. Wallace

Sharpstein, J.

This is an appeal from a judgment and order denying defendant’s motion for a new trial in an action of unlawful detainer.

The plaintiffs allege that on or about the first day in May, 1886, they by a verbal agreement and lease leased and demised to the defendant certain premises now in his possession, to have and to hold at the will of the plaintiffs; that- plaintiffs, on the seventh day of January, 1888, terminated said lease by giving defendant a notice in writing to remove from the said premises within a period of one month from said date, and on the twenty-eighth day of March, 1888, three days’ notice in writing was given by plaintiffs to defendant, requiring and demanding of him possession of said premises; but defendant neglected and refused for the space of three days after said demand was served on him, and ever since has neglected and refused, to surrender possession of said premises; wherefore plaintiffs pray restitution thereof, etc.

Each and every allegation of the complaint is specifically denied by the defendant.

And the defendant, further answering, alleges that he entered into possession of said premises, and made valuable improvements thereon, under a verbal agreement with one Watson, an agent of plaintiff Carpentier, to purchase the same whenever said Carpentier had perfected his title thereto. Defendant further alleges that he has always been ready and willing, and is now ready and willing, to pay for said land the price which he agreed to pay therefor.

Upon these issues the parties went to trial before a jury, which returned a verdict for the plaintiff for the restitution of the premises without damages, upon which a judgment was entered that the plaintiff recover from the defendant the restitution of the possession of said premises.

The contention of appellant is, that he “ did not occupy the premises as a tenant at will or for a term, but on a definite verbal agreement to purchase the land improved by him.” A verbal contract for the sale of real property, or for an interest therein, is invalid; and if made by an agent of the party sought to be charged is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged. (Civ. Code, sec. 1623.) Here there was no written agreement to sell by the owner of the property, or authority in writing to an agent to sell. The alleged agreement is doubly invalid: 1. It was not in writing; 2. It was not made by an agent having authority in writing to make it.

We, think the entry and holding of the - defendant under avoid agreement constituted him a tenant at will. That being so, the record presents no error committed by the court which could affect the substantial rights of the parties.

Judgment and order affirmed.

De Haven, J., and McFarland, J., concurred.

Hearing in Bank denied.