2 Edw. Ch. 445 | New York Court of Chancery | 1835
Even though such an agreement were made for an extended lease of ten years, as is alleged by the bill, still it was by parol and within the statute of frauds : and of which statute the defendant claims the benefit. There is not enough to take it out of the statute. Acts of part-performance, in order to have this effect, must be solely applicable to the parol agreement: Frame v. Dawson, 14 Ves. 386; Morphett v. Jones, 1 Swanst. 181 ; Phillips v. Thompson, 1 J. C. R. 131, 149. Here, the alterations in the building which the complainant proceeded to make were in the shape of repairs ; and by the'covenants in the original lease he assumed to make all necessary repairs, &c. Having commenced and removed part of the building with this view, he had no right to stop short and insist upon a new lease as an inducement for going on to complete the repairs which he was bound to make by the covenants in the lease which he already had. The improvements, by
But the evidence does not make out satisfactorily that such an agreement for an extended lease was made as is set up in the bill and of which the complainant seeks a performance. The defendant denies it in his answer: and the testimony of the witnesses is too vague and indefinite in regard to the true import of the conversations to be relied upon in opposition to the answer. The terms and conditions upon which the defendant proposed and agreed to grant a new lease, as admitted by the answer, are very different from those claimed by the bill and are probably the same which the witnesses speak of as being the subject of the conversations they heard.
The complainant, then, having failed to establish such an agreement as he sets up in his bill, claims to have the benefit of the agreement which the answer admits was made and according to the terms of which the defendant, at the time of filing his answer, professed to be ready and willing to give a new lease. The difficulty, however, is, in its not being a part of the complainant’s case; and if he meant,-in this suit, to claim the benefit of the agreement which is set forth in the answer he should have amended his bill. It would be contrary to principle and against all authority to decree performance of a contract different from the one charged in the bill: Lynsday v. Lynch, 2 Sch. & Lef. 1; and see Willis v. Evans, 2 B. & B. 228; Legh v. Haverfield, 5 Ves. 452; Phillips v. Thompson, 1 J. C. R. 146; James v. M’Kernon, 6 J. R. 559 ; Pilling v. Armitage, 12 Ves. 78.
If the defendant be still willing to give a new lease as profered in his answer and the complainant be ready to accept of the same upon the terms therein specified, there will be no necessity for a decree to this effect; and in case the defendant refuses to give such a lease upon a request for it, then resort may be had to a new bill. As in Lyndsay v. Lynch, the present bill must be dismissed, with costs; but without prejudice to the right of filing another, in case the complainant shall be so advised.