128 Minn. 468 | Minn. | 1915
Defendant owns a dairy farm in Steele county, which at the time' here in question was in the possession of tenants under a lease expiring in March, 1914. Defendant was on the lookout for a new tenant to take the place of those whose term was to expire at the time stated. In September, 1913, plaintiff, a resident of Iowa, came to Steele county, this state, and was by one Duncan, whom defendant had employed to find a tenant, presented to defendant as an applicant for a lease of the farm. Negotiations were had by the parties and the terms of the lease agreed upon. The proposed leáse was upon the basis of cash rent, payable at stated times, and the term of tbe lease extended for a period of one year from March 1, 1914, with the. privilege of an extension thereof for the further period of three years. The rent was to be secured by mortgage, but there is a dispute as to the property to be included therein. While all preliminary matters were fully agreed upon at the time stated no written-evidence thereof was made or signed. Plaintiff declined to execute a lease until he had returned to his home and obtained the consent of' his wife. Defendant made no objection to this, but stated to plaintiff that if the wife’s consent or approval was obtained, and plaintiff should within a week remit to defendant the sum of $50, on account of the rent to be paid, the contract would be put in writing and the lease prepared and signed upon plaintiff’s return. Plaintiff’s wife gave her assent, and within the time agreed upon plaintiff remitted to' defendant the advance payment of $50. Plaintiff owned some personal property, part of which, a threshing machine, he shipped to
The contentions of plaintiff are: (1) That the agreement to execute the lease, though the lease agreed upon extended for a period longer than one year, was independent of the lease itself, was to be performed by the execution of the lease within a year, namely, within a short time from -the date of the agreement, and therefore was not within the statute of frauds; (2) that even though within the statute defendant, is estopped by the facts presented from urging the statute
1. The first contention of plaintiff is disposed of by the case of Cram v. Thompson, supra. It was there expressly held that an oral contract to execute a lease, which when executed would extend for a period beyond one year, was within the statute and unenforceable. The question was squarely decided in that case and the decision must be deemed as settling the law on the subject in this state. There is no dispute in the case at bar that the lease when executed by the parties was to take effect in the future and for a longer period than one year. The agreement to enter into such lease is of no greater validity than an oral contract of lease, had one been entered into instead of the agreement to do so. If the oral agreement to enter into a lease which by the statutes (6998 and 7003, G. S. 1913) is required to be in writing, be held valid, then the purpose of the statute is wholly nullified, and may be avoided in all cases. The rule of the Cram ease, which controls the question, seems in line with many of the authorities (4 Notes on Minn. Reports, 930; Tiffany, L. & T. 384; Harrell v. Sonnabend, 191 Mass. 310, 77 N. E. 764; Hurley v. Woodsides, 21 Ky. L. R. 1073, 54 S. W. 8; Strehl v. D’Evers, 66 Ill. 77; Smith v. Phillips, 69 N. H. 470, 43 Atl. 183; Jordon v. Greensboro Furnace Co. 126 N. C. 144, 35 S. E. 247, 78 Am. St. 644), though the courts are not in full harmony upon the question. Shakspeare v. Alba, 76 Ala. 351; Tillman v. Fuller, 13 Mich. 113; Donovan v. Schoenhofen Brewing Co. 92 Mo. App. 341. The distinction between the lease itself, and an agreement to execute the same is pointed out by Mr. Tiffany in his work on landlord and tenant. 1 Tiffany, L. & T. c. 6, p. 371. We, however, discover no sufficient reason for departing from the rule of the Cram case, and therefore follow and apply it as there laid down.
2. The second contention does not require discussion. A careful examination of the record discloses no evidence which would justify the conclusion that defendant by his conduct estopped himself from invoking the statute. There is no showing that defendant encouraged plaintiff to move his farming utensils to Minnesota before conclud
3. Was there a waiver of the statute by the failure of defendant to object to the evidence on the trial of the action ? We think the question must be answered in the negative. The complaint, as heretofore stated, alleged in general terms the agreement for a lease of the land, and contains no suggestion that it was not in writing. The answer was in substance a general denial and was sufficient to put plaintiff to the proof of a valid enforceable contract. The evidence presented disclosed that the contract relied upon was in parol, and it was all received without objection. But at the close of plaintiff’s case defendant raised the question of the statute of frauds by a motion to dismiss the action, and again by a request for a directed verdict. There are authorities which sustain plaintiff’s contention that defendant waived the statute by not reasonably objecting to the evidence. 20 Cyc. 320, and citations there made. But such is not the rule heretofore applied in this state. The practice generally understood with us as correct was stated by Mr. Justice Mitchell in Iverson v. Cirkel, 56 Minn. 299, 57 N. W. 800, as follows:
“The rule * * * is that [defendant] may take advantage of the statute of frauds on the trial, either by objection to the competency of plaintiff’s oral evidence when offered or by the objection, after its admission, that it does not prove a valid contract.”
And the practice so announced has been followed in other cases.
4. Defendant invokes the general rule that incompetent evidence is sufficient proof of a fact when received without objection. Metropolitan Music Co. v. Shirley, 98 Minn. 292, 108 N. W. 271; Western Land Securities Co. v. Daniels-Jones Co. 113 Minn. 317, 129 N. W. 508. Rogers v. Stevenson, 16 Minn. 56 (68) is cited in support of the contention that the statute of frauds here involved (section 6998) merely prescribes a rule of evidence, and it is urged that since the evidence was received on the trial without objection it was sufficient to establish the contract in question. It may well be • doubted whether the court intended in that case to so construe the statute. The language of the statute is that “no action shall be maintained” upon the contracts there referred to unless in writing, and though the statute may be waived by the party entitled to invoke it, it is clear that the legislature intended by its enactment something
Judgment affirmed.