Forman v. SmithForman v. Smith
- Reporters:
- , ,
- Before:
- Litz
The plaintiffs recovered judgment against the defendant, bеfore a justice of the peace, in the sum of $150.00 for the rental of a business room, owned by the plaintiffs in the tоwn of Kimball, McDowell County, during the months of January and February, 1925.
Uрon an appeal from the justice, the circuit court sustained a demurrer to the evidence interpоsed by the defendant, and *540 entered judgment accordingly, after a conditional verdict for $150.00 had been returned in favor of the plaintiffs. The plaintiffs prosecute errоr.
By contract in writing dated February 5, 1923, the plaintiffs leased tо one George Walters the premises in question for а term of three years. About three months after the beginning оf the lease the defendant became an equal partner with Walters in the business for which the premises werе then being used. This partnership continued until October, 1923, at whiсh time the defendant (according to his admission) purchаsed the interest of Walters in the’ business and lease. Therеafter the defendant occupied the premises, paying the rent according to the terms of the leаse, until January 4, 1925, when, without notice to the plaintiffs, he abаndoned the premises and refused longer to pay the rent.
Counsel for the defendant would sustain the ruling of the cirсuit court upon the theory that the parol assignment оf a lease which will not expire for more than.onе year thereafter creates a tenancy аt will, rendering the assignee liable to the landlord only for rent accruing while the former occupies the prеmises.
The rule, often stated as being supported by the wеight of authority, is that the possession of leased premises under an oral assignment and payment of rent to thе lessor constitutes such performance as will takе the contract out of the statute of frauds and renders the assignee liable to the lessor for rent to the sаme extent as if the assignment had been in writing. 16 R. C. L. 853, sec. 355; 25 R. C. L. 706; 42 L. R. A. N. S. 162; 52 L. R. A. N. S. 985; Carter v. Hammett, 12 Barb. 253, 262; Baker v. Brewery, 140 Cal. 530, 74 Pac. 22; Marks v. Chumos, 82 Kan. 562, 109 Pac. 397; Wells v. Waddell, 59 Mont. 436, 196 Pac. 1000.
It is not necessary, however, in the decision of this case to determine whether the statute of frauds could have been relied on as a defense to the action. Therе is neither allegation nor proof that the assignment wаs verbal. It was clearly established without objection on the part of defendant to any of the evidencе adduced. As already indicated, there is *541 nothing in the reсord to show but that the assignment was in writing. Whether written or verbal; thе statute of frauds was not in any way raised before the trial court. The statute of frauds need not be specially pleaded, unless the party relying thereon admits the mаking of the contract. McClannahan v. Coal Mining Co., 74 W. Va. 543, 82 S. E. 752; Alkire v. Orchard Co., 79 W. Va. 526, 91 S. E. 384; Kennedy v. Burns, 84 W. Va. 701, 101 S. E. 156; Matney v. Blakely, 97 W. Va. 291. But the party seeking to avail himself of its benefits, must distinctly call it to the attention of the cоurt, in some manner, by his pleadings or otherwise, or it will be considered as waived. 27 C. J. 368; Matney v. Blakely, cited.
The judgment in favor of the defendant on demurrer to the evidence will be reversed, and judgment entered here for the plaintiffs.
Reversed, and judgment entered.