Plaintiffs filed a complaint for alleged rent due under a written ten-year lease for a service station which provided for a monthly rental of $1,500 and asserted defendants were in arrears in the amount of $23,000. Defendants’ answer stated the written lease was "orally modified two times” as to the rental amount and by failing to evict defendants and accepting the lesser amounts plaintiffs waived their right to sue for any deficiency and were estopped to hold defendants to the written lease.
The lease was to run from 1 April 1968, and expire on 31 March 1978. In January, 1974, one of the defendants approached one of the plaintiffs concerning lowering the monthly rental amount. All parties agreed that the rent would be reduced to $1,000 per month. Defendants paid, and plaintiffs accepted, payment of $1,000 per month for the year of 1974. In December of 1974 defendants again asked plaintiffs to lower the rent — contending they had lost $14,000 during the year. One plaintiff testified that defendants made "a request that we reduce the rent to $500 a month. . . He just said he couldn’t pay it.” One defendant testified that in response to his request, plaintiff picked up the $500 and said: "Will you please do the best you can.”
Plaintiffs denied that an agreement was reached on the second reduction of rental to $500 per month but testified that defendants "paid us $500 per month . . . for five months,” from January through May of 1975. In May, 1975, a Mr. Motley informed plaintiffs he had "bought out” the defendants. Thereafter, plaintiffs rented to Mr. Motley at a monthly rental of $750.
Plaintiffs testified they saw their lawyer in September of 1975 and "it was his advice that we go back to the original agreement.” This action was filed. The jury awarded plaintiffs $2,500. They bring this appeal. Held:
1. To be legally effective, a lease for a period longer than one year must be in writing as it is within the Statute of Frauds. Code § 20-401 (5). As a general rule, a written contract may be modified or changed by subsequent parol
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agreement between the parties — if founded upon consideration.
New Amsterdam Cas. Co. v. Thompson,
Thus, the question presented is which agreement, or agreements, provides the basis for an action for parties to a lease contract — required to be in writing, but presumably rescinded or modified by subsequent parol agreement, acted upon by one party and accepted by the other party? If the original written contract cannot be modified by the subsequent parol agreement
(Gulf Oil Corp. v. Willcoxon,
Our Code, § 20-116, provides: "Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given the other of intention to rely on the exact terms of the agreement. Until such notice, the departure is a quasi new agreement.”
Verner v. McLarty,
There was a substantial departure from the rental terms of the written contract and an agreement to accept the lesser amount. This agreement was followed for one year. In fact, the plaintiffs never gave notice to defendants
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they intended to return to the exact terms of the written contract until after they had relet the demised premises to a new tenant — probably in September, after defendants departed in May. This court held in
Scott v. Ryder Truck Lines,
One reason for performance of an oral modification to a written contract being an exception to the general rule is that "part performance will satisfy the requisites both of mutuality and of the Statute of Frauds.”
Cooper v. G. E. Const. Co.,
Subsequent performance by the parties is sufficient consideration to support what Code § 20-116 calls "a quasi new agreement.”
New Amsterdam Cas. Co. v. Thompson,
2. Where there was an oral agreement to pay a monthly rental of $1,000, and one party tenders $500 per month and requests a reduction in the monthly rental, and the other party accepts the tender and states — essentially: "Do the best you can,” we find there is an issue of intent of the parties as to what was agreed upon and this issue was correctly placed before the jury for resolution.
Pinkerton & Laws v. Atlantis Realty,
3. The only remaining question is whether plaintiffs were entitled to rental, in some amount, for the remainder of the term of the original written contract. The original term extended until 31 March, 1978. However, they had orally agreed to waive the amount due as rent, and had substituted a new amount in the "quasi new agreement” in parol, in the amount of $1,000 per month. If the parties intended for the new rental to apply for the remainder of the term of the original lease it would exceed one year and be unenforceable under the Statute of Frauds. Code § 20-401 (5);
Moon v. Stone Mtn. Memorial Assn.,
We find the key to solution in
Perry Development Corp. v. Colonial Contracting Co.,
4. On appeal, after verdict the evidence is construed in its light most favorable to the prevailing party and every presumption and inference is in favor of the verdict
(Mathis-Akins Concrete Block Co. v. Tucker,
The trial court did not err in overruling plaintiffs’ motion for directed verdict at the close of plaintiffs’ case and defendants’ case, and overruling plaintiffs’ motion for judgment notwithstanding the verdict.
Judgment affirmed.