116 N.Y.S. 234 | N.Y. App. Div. | 1909
The plaintiff sues and has recovered a judgment for one-half year’s rent, from October 1,1906, of an apartment in an apartment hotel. Defendant had occupied the apartment for a number of years under a written lease, which had been renewed from year to year by written renewals, the last renewal expiring on October 1,
It is apparent from this statement of the conversation, accepting it as accurate, that both Flauraud and Proal expected and intended that the oral agreement then arrived at should subsequently be embodied in a formal written lease. The plaintiff recognizes this, and places his light to a recovery squarely upon the rule, which is well established and often enforced, that in a case wherein, under the Statute of Frauds, a tenancy can lawfully be created by parol, and the parties have orally agreed upon all the terms, nothing being left to be done except to put them in writing, the letting will be deemed to be complete although the stipulated written lease should never be executed. This well-recognized rule is, however, to be applied with caution, and is never applied unless it clearly appears that every material term of the contract was in fact agreed to, and that nothing remained for future negotiations and agreement. So we find in a great majority of the cases in which the rule has been applied that the meeting of the minds has been evidenced by letters or other writings, which have shown beyond dispute just what was agreed to. (Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209; Peirce v. Cornell, 117 App. Div. 66.) Where the question is, as in the present case, one of intent, it has always been recognized that the circumstance that the parties intended to have a written formal agreement is strong evidence that the oral agreement was not understood or intended to be binding. (Bryant v. Ondrak, 87 Hun, 477, citing Brown v. N. Y. C. R. R. Co., 44 N. Y. 79; Franke v. Hewitt, 56 App. Div. 497.) In Arnold v. Rothschild’s Sons Co. (37 App. Div. 564; affd., 164 N. Y. 562) the parties had negotiated through a broker for the lease of certain premises. These negotiations had resulted
It was in contemplation that a formal written lease should be executed. Like the defendant in the present case, the Bothscliilds never took possession, but sent word in January that they could not use the store. As in the present case, no attempt was made to procure the execution of a written lease, but suit was brought when the first installment of rent fell due. The case, therefore, much resembles the case at bar, being if anything stronger in favor of the plaintiff, because the letters left no doubt as to what was agreed to. The court said: “ It is claimed by the appellants that if all the terms of the agreement were finally concluded between the parties so that nothing remained except to reduce those terms to writing and execute the writing, the contract was completed, although it was understood between the parties that a formal lease should be executed. It is quite true that where a valid contract has been made by which the parties under stand that their rights are fixed, such a contract may be enforced, although there may be a stipulation of the understanding between them that a more formal contract shall be executed. * * * But it is essential to the enforcement of such an informal contract that the minds of the parties should have met upon all the terms as well as the subject-matter of the contract; and if anything is left open for future consideration, or if the subject-matter does not appear to be understood alike between the parties, the informal paper cannot form the basis of an agreement. * * * As every one knows, a formal lease contains many stipulations which are not found in the contract growing out of the conversations which Taneubaum had with these parties. All those stipulations have an important effect upon the rights of the respective parties; and when it was understood that such a formal lease should be executed, it would be necessary that the preliminary conversations should be quite full and explicit as to the terms of the contract before the parties should be held to a completed contract in the absence of what they had agreed should be the final evidence of such a bargain.” In Brown v. N. Y.
There was, therefore, nothing to submit to the jury, and the motion for the dismissal of the complaint should have been granted. The judgment and order appealed from must, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.
Patterson, P. J., Ingraham and Houghton, JJ., concurred; Clarke, J., dissented.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.