In September, 1918, plaintiff and defendant entered into a contract whereby defendant leased his farm in Wayne county to plaintiff for the term of five years. The contract was not reduced to writing, and plaintiff failing to get possession, brought this suit at law for damages for alleged breach of contact. The damages sought as appears from plaintiff’s instruction on the measure of damages was the difference between the reasonable value of the use of the farm for the year next after the rental contract, and the value' of the' rent which plaintiff under the contract was required to pay defendant for said year. The cause wаs tried before the court and a jury, resulting in a verdict and judgment in favor of plaintiff. Defendant was unsuccessful in Ms motion for a new trial, and brings the cause here by appeal.
*446 Defendant relies on that part of the Statute оf Frauds, section 2783, Revised Statutes 1909, which provides that no action shall be-brought upon any contract for the lease of lands for a longer time than one year, or upon any agreement that is not to be performed within one year from the making thereof unless- the agreement, or some memorandum thereof, upon Avhich the action shall be brought shall be in writing. By the lease agreement plaintiff was to have possession of the farming land consisting of about 100 acres, including the dwelling house, barns, lots, orchards, etc. There were other conditions about stock and what each Avas to furnish, but these conditions are not material since they in no way affect the issues here. The rental was to be one-half of the crops produced. Defendant at the time of the agreement was living in the dAvelling house on the farm, and he claimed that plaintiff was to build an addition to the dwеlling, and that he, defendant, was to furnish the material for this addition, and that plaintiff was to have only two rooms of the dwelling as it was then. Defendant denied that he was to move off the farm, while plaintiff claimed that defendant was to move off, and give him full possession. The jury found for plaintiff and so far as concerns this appeal it stands established that plaintiff Avas to have the full possession. The question of possession is the only one we think it necеssary to consider.
The evidence as to possession shows that after the oral agreement plaintiff and his wife went to defendant’s dwelling taking with them “pillows and a few quilts;” and between . September 18th, and October 28th plaintiff sowed about 29 acres of wheat on the land he rented. He also bought, cut and put in the barn some hay grown on the place. He used defendant’s machine, teams and wagons in taking care of the hay. Ha also bought sоme potatoes, and dug and stored them on the premises. Defendant refused to move out of the house, and plaintiff got no more possession than stated.
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By section 2781, Revised Statutes 1909, it is provided that all leases оf lands made by parol, and not put in writing and signed by the parties or their agents shall have the force and effect of leases or estates at will only, and shall not, either in law or in equity, be deemed or taken to have any other or greater force. This section has been construed in cases involving the oral lease of lands for agricultural purposes for more than a year, when lessee is - put in possession, as converting such holding into a tenancy from -year to year, which can only be terminated by notice to quit in accordance with section 7882, Revised Statutes 1909. [Cunningham v. Roush,
Was plaintiff put into such possession as to convert his contraсt into a tenancy from year to year, and thus entitle him to recover in this case? We think not. Plaintiff requested, and the court gave the following instruction, which shows the theory on which plaintiff proceeded:
“The court instructs the jury that, if they shall believe and find from the evidence that on or about the first week in the month of September, 1918, the defendant by verbal contract with the plaintiff rented his farm mentioned in the petition and in the evidence, to plaintiff to be farmed by plaintiff for five years for a consideration of one-half of the crops that should be produced and raised on the farm by plaintiff during the term of the lease, the defendant to furnish the plaintiff with the nеcessary farm machinery, pay one-half the cost of seed wheat, one team to pull the binder in harvesting, one-half the cost-of binder twine and one-half the cost of taking care of the wheat after being put in the shock, and that with the consent of defendant plaintiff entered into and took possession . of the farm and prepared the land and sowed twenty-eight or twen *448 ty-nine acres of' wheat on the farm in the month of September, and cnt his hay and pnt it in the barn on the farm, and claimed possession of the whole farm under said contract, then the court instructs the jury that said verbal contract was and is a binding contract between plaintiff and thе defendant, from and after the date on which the contract was made;. and the court 'further instructs the jury that, if the jury shall further believe and find from the evidence that - on or about the 2nd day of January, 1919, the defendant refused to permit plaintiff to hold and cultivate the farm during the crop year of 1919, and told plaintiff he could not cultivate the farm under said contract and refused to let plaintiff enter the farm to harvest his said wheat crop, but held the possession of the farm himself, without the consent of the plaintiff, and thereby prevented plaintiff from having and cultivating the farm during the crop season of 1919, then the verdict of the jury should be for the plaintiff.”
By this instruction the jury were’ аdvised that if plaintiff entered into and took possession of the farm and prepared the land and sowed twenty-eight or twenty-nine acres of wheat in the month of September, and cut his hay and put it in the bam, and
claimed
possessiоn of the whole farm under the contract, that then the verbal contract was binding. This Tkould be true if there was sufficient evidence to justify the submission in the instruction that plaintiff entered into and took the full possession of the farm with the consent of defendant. Plaintiff was not put into possession of the dwelling or the barn, or anything else, and his sowing wheat and putting his hay in the bam were more in the nature of. permissive use'than in the nature of possession. Plaintiff’s occupancy of one room of the-house for himself and wife for a few weeks has no semblance to possession as that term is understood and means when considered with reference to the law of landlord and tenant. The possession of the house was during this time certainly in defendant. It was his table, his house, his furniture, and under his control
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absolutely, and plaintiff makes no contention to tbe contrary. In fact plaintiff says that he did not get possession of tbe bouse, and does not claim to have. Nothing about tbe premises bad been turned over to plaintiff. No teams were turned over to bim, no lots, no tools, no machinery. True be used defendant’s team and machinery to sow the wheat, but this was by permission of defendant, and not necessarily under tbe contract, as plaintiff does not claim to have bad control of tbe teams or tools. But if it be conceded that plaintiff was by thе defendant given tbe possession of the land be sowed in wheat, that would not be sufficient to convert this oral contract into a tenancy from year to year. Tbe possession of a part of tbe leased premises in such circumstances as here is not sufficient. [See Shacklett v. Cummins, supra, and cases there cited.] In tbe last mentioned case it is stated that “it is definitely settled in this State that in law cases part performance will not put tbe contract outside tbe Statute of Frauds. That nothing short of full performance will justify rebanee upon such a lease.” In Nally v. Reading, 107 Mo. l. c. 355,
Plaintiff by the instruction on the- measure of dam- •' ages wаs permitted to recover tbe’difference between tbe
me
of tbe farm for one year to bim, and the value of tbe rent be was required to pay defendant. If tbe relation - of' landlord and tenant was not created, and we bold that such relation was not created, then plaintiff could only recover for work and labor performed by bi-m in putting in tbe wheat and such other work that, be performed while waiting for defendant to comply
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with, thе agreement and give up the possession. [Shacklett v. Cummins, supra.] In that case plaintiff in the latter part of the summer of 1911 bought a farm from one Dodson. Defendant Cummins was in possession of the farm at the' time under a leasе from Dodson ending, March 1, 1912. At the expiration of the lease defendant refused to quit the premises and plaintiff commenced unlawful detainer. Defendant claimed the right to continue in possession by reason of a vеrbal renting from plaintiff entered into in the latter part of August, shortly after plaintiff bought. Defendant claimed that he was to have the farm -for a year from the expiration of his term under Dodson; that he was to plow about 35 acres of sod that fall, and give a part of the crop when matured. But since the contract was not to be performed within a year, it was held invalid under the Statute of Frauds. Defendant contended that his act of plowing had the effect of putting'him in possession. The court held that defendant’s occupancy was not under the future lease, but was a right he had and enjoyed under the Dodson lease, and that his plowing under the facts there сould not be construed as putting him in possession by the plaintiff. There the court made the observation, which we think sound, that if Cummins “had not been,in possession of the land — had been a stranger — and had made the identical agreеment with plaintiff he now claims, and had plowed the land with plaintiff ’s, knowledge, that would not have changed the policy of the law by wiping out the positive terms of the statute. Its only effect would have been to render plaintiff liable to him on account for work and labor.” Shacklett v. Cummins was certified to the Supreme Court as being in part in conflict with Winter v. Spradling,
We ■ are not to be understood as -holding that the plaintiff cannot recover fоr his half of the wheat, converted by the defendant, which plaintiff had .sowed and raised on the land, as well as for work and labor per *451 formed thereon, for which he received no benefit. Such damages were not sought in this action.
In the view that we take of this case, it is not necessary to consider other questions raised. The judgment below is reversed.