97 N.W. 853 | N.D. | 1903
The plaintiff sues to recover $200 as rent for the use and occupation of a farm under a lease from the owner. The complaint sets forth the lease in full, and an assignment of it to the plaintiff. One Browning was the owner of the land, and in April, 1899, leased it in writing to the defendant, Ruettell, for one year, for the sum of $200, to be paid in advance. The lease contained a proviso that defendant had the option to extend the lease for another year from April, 1900. In January, 1900, the owner of the land, Browning, assigned the lease to plaintiff. Upon receiving the assignment, plaintiff notified defendant that it had pos
The appellant assigns twenty-four errors of law occurring at the trial. Two of them only are argued and these fairly raise everything claimed as error in the additional assignments. These assignments present the following questions: (1) Should the defendant have been permitted to show that the rental for the land in question was $160 per annum, instead of $200, as stipulated in the written lease? (2) Should the defendant have been permitted to show that he occupied the land during the cropping season of 1900 under an oral lease made in October, 1899, under which he was to use the land for 1900 ? The first question stated is raised by the answer, and apprises the plaintiff that defendant will contend on the trial that the consideration for the use of the land was to be $160, and not $200, as expressly stated in the lease. All of the testimony offered at the trial to show that the rent was other than as stated in the lease was objected to as varying the express terms of a written contract, and sustained on that ground. Defendant contends that such rulings were erroneous, as the evidence offered would vary the terms of a written contract only so far as the consideration for the same is concerned, and that written contracts may be varied
The answer alleges that the defendant is entitled to the possession of the premises during the year 1900 by virtue of a parol contract entered into between himself and Browning in October,
The offer of proof must be considered in connection with the explanation of it given by defendant’s attorney after the motion for a directed verdict had been made by plaintiff. From such explanation it appears that the parol agreement was one that could ■not possibly have been performed within one year. It contemplated ;a lease of the land for more than two years. Hence it was invalid under section 3887, Rev. Codes 1899, supra, unless carried into effect, and its terms executed by the acts of the parties. The rights of parties acting under a contract invalid on account of not being in writing as provided by section 3887, supra, is well stated by McAdam on Land. & Ten. (3d Ed.) vol. 1, p. 66, as follows: “Where a lease is void by reason of the provisions of the statute, that does not render the contract an illegal or unlawful one if the parties choose to perform it. If the lease is verbal, and the term is for a longer time than one year, it is void in the limited sense •that neither party can compel the other to perform it. The landlord meed not, in such a case, give the tenant possession if he chooses not fo do so, and no action will lie by the tenant against the landlord in consequence thereof. Nor need the tenant take possession in such a case. No action will lie against him if he does not. The parties may, however, go on and perform the agreement, although .they could not be compelled to do so, and in such case, if the tenant
On January 19, 1900, defendant was advised of plaintiff’s right to the possession of this land. The plaintiff apprised him that, if he wished to lease the land for 1900, he could do so from it. After that he knew that Browning would not comply with the October contract. He also knew that Browning had parted with possession of the land, and that the conditions under which defendant was entitled to hold the land for 1900 under an option provided for in the lease did not exist. Thereafter defendant could not demand a lease of the land for 1900 from Browning under such •option, because defendant had the option only in case Browning was in possession. After January 19, 1900, defendant should have looked to the plaintiff bank for rightful occupation of the land for 1900, as he had no rights thereto by virtue of any contract with Browning. The bank was un’der no legal obligation to renew the tenancy. It could treat him as a trespasser, or permit him to hold over. It permit'him to remain under the written lease, or, at its pleasure, make any other contract for his occupation of the premises. It permitted him to farm the land without any express contract other than the written lease of which it was the assignee. Defendant held over knowing that he had no new contract with the'bank. McAdam on Land, and Ten. vol. 1 (3d Ed.) section 32, lays down the rule as follows: “When the tenant remains in pos
Judgment affirmed.