156 Ind. 665 | Ind. | 1901
This suit'was brought by appellee to compel appellant.to execute a written lease to appellee. Final judgment was rendered in favor of appellee. The errors assigned call in question the action of the court in overruling the demurrer to the complaint, and in overruling the motion for a new trial. '
The complaint avers, in substance,-“that the plaintiff and. defendant are each corporations;.-that the defendant was the owner of certain water power, in the city of'Elkhart, created by a dam across the St. Joseph river, and that it owned a head-race extending from the river, above the dam on the north side westwardly to a point below the dam ;- that the defendant, being desirous of furnishing the plaintiff á certain portion of said water power, agreed to furnish to the plaintiff 9,927 cubic feet of water per minut,e under a working head of ten feet, and more or less, proportionately, as the head may vary above or below said ten feet; said water to be furnished from said hydraulic head-race, and to be delivered to said Globe Tissue Paper Company in their flume or flumes adjacent to said head-race; that at said time therewas
It is first insisted by appellant that the provision “The Globe Tissue Paper Company may cancel the obligation of this lease upon giving six months’ notice of a total suspem sion of business”, to be contained in said lease, would give appellee the right to-terminate' the’ same, and for this reason the lease, if executed, would.lack mutuality; that on account of the lack of mutuality, specific performance of its terms could not be enforced. Marble Co. v. Ripley, 10 Wall. 339, 359, 19 L. Ed. 955; Express Co. v. Railroad Co., 99 U. S. 101, 25 L. Ed. 319,
The rules applicable to an action to compel the execution of a written lease, as in this case, are in many respects, materially different from those governing an action to enforce its terms. In Sterling v. Klepsattle, 24 Ind. 94, 87 Am. Dec. 319, Sterling was the equitable owner and in possession of certain lands, but did not hold the legal title. He sold the land to Klepsattle and put him in possession under a parol agreement to execute a title bond therefor on the payment of the purchase money, the title bond to be conditioned for the conveyance of the land by proper deed as soon as Sterling obtained the legal title. After Klepsattle had paid the purchase money, Sterling refused to make the title bond. Before Sterling, obtained the legal title, and while he was necessarily unable to perform the condition of the bond, Kelpsattle began suit to enforce specifically, the parol agreement for the making’of the title bond. Sterling denied the existence of the parol agreement. The court found the-parol agreement to, have been made and decreed that Sterling make the title bond. On appeal the judgment was affirmed.
After the time for which a lease, if it had been executed in accordance with an oral agreement therefor, has fully expired, it is evident that the performance of the stipulations and conditions of the lease itself cannot be specifically enforced ; but, if the proposed lessee shows that he has changed his position in reliance on the oral agreement for the lease, and that there has been such performance on his part as will
An oral agreement for making a lease will not be specifically enforced‘against the proposed lessor, if.the intended lessee has already broken a condition on which a forfeiture would arise; but if it is left fairly doubtful, on the evidence before the chancellor, whether the condition has in fact been broken by the complainant lessee, the court will direct the .lease to be executed and antedated the time of the alleged breach, so that the issue may be fairly presented in an action at law. Pomeroy Spec. Perf. (2nd ed.), §291; Fry on Spec. Perf. (2 Am. ed.), §646; Rankin v. Lay, 2 De Gex, F. & J. 65, 72; Pain v. Coombs, 1 De Gex & J. 34; Lillie v. Legh, 3 De Gex & J. 204; Woodfall’s Landl, and Ten. (16 Eng. ed.), 132.
The general rule is that a partnership contract cannot be specifically enforced, that is, it is impracticable for a court of equity to compel one person to act in the relation of a partner to another; but if a party, on the faith of another’s agreement to execute certain articles of copartnership, has placed himself in' a position from which he can not be restored except by counting on the legal rights which were to be evidenced by the articles, a court of equity will decree the execution of the articles, although the partnership might be terminated by the defendant immediately. Satterthwait v. Marshall, 4 Del. Ch. 337, 354; Whitworth v. Harris, 40 Miss. 483, 491; Birchett v. Bolling, 5 Munf. (Va.) 442. Note to Crawshay v. Maule, 1 Swan. 495, 513; Buxton v. Lister, 3 Atk. 383; England v. Curling, 8 Beav. 129; Gow on Part. (1st Am. ed.), pp. 148, 149; Parson on Part. (4th ed.), §163, and notes; Story on Part. (7th ed.) §§188, 189,
It appears from the complaint in this action that on the faith of the oral agreement for said lease, and the agreement of appellant to execute said lease in accordance with the terms of said written memorandum, appellee purchased the said grounds and buildings and repaired and equipped the same with proper machinery for the manufacture of paper, by the use of said water power, at an expense of $25,000, and took possession of and began the operation of said mill on September 1, 1891, and continued to operate the same and use said water and pay the annual rent of $2,000 in quarterly instalments until the commenceinent of this action, a period of four years. The contract for the lease was denied by appellant, and if executed would furnish appellee with the written evidence of the rights contracted for. .
Under the allegations of the complaint, it is clear, from the authorities cited, that appellee is entitled to be placed in such position that it can enforce its rights the same as if said-lease had been executed by appellant at the proper time. This can only be secured by compelling appellant to'execute the lease contracted for as of the date of September 1, 1891'. When such lease has been executed, even though a court of • equity might not specifically enforce its terms for want of mutuality or uncertainty, a question, however, which we do not decide, appellee would be secure in its legal rights as to the past, present, and future, not only against appellant and its subsequent lessees with notice, but also as against all other persons. This conclusion is not in conflict with the cases of Marble Co. v. Ripley, 10 Wall. 339, 359, 19 L. Ed. 955, Express Co. v. Railroad Co., 99 U. S. 191, 25 L. Ed. 319, and Louisville, etc., R. Co. v. Bodenschatz, etc., Co., 141 Ind. 251, 265, cited by appellant. In said cases the
Rust v. Conrad, 47 Mich. 449, 41 Am. Rep. 720, cited by appellant, was a suit to compel the execution of a lease under a contract of option. In that case, however, it is not shown that possession had been taken or rent paid under the terms of the lease, nor that any money had been expended on the faith thereof. For all that appears, there was no consideration to support said agreement. That ease, therefore, is not in point here.
It is next insisted that the contract for the lease not being in writing signed by the appellant, as required by clause four of §6629 Burns' 1894, §4904 B. S. 1881 and Horner 1897, cannot be enforced. It is true that in this State contracts for the sale of land, or any interest therein, can not be enforced unless the contract or agreement upon which the action is brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or by some person by him lawfully authorized, excepting, however, leases not exceeding three years. §6629 (4904), supra. This statute does not, however, abridge the power of the courts to compel specific performance of agreements in case of part performance. §6633 Burns 1894, 4908 E. S. 1881 and Horner 1897.
When there has been such part performance of an oral contract as to take the same out of the operation of the statute of frauds, specific performance thereof may be enforced. Coe v. Johnson, 93 Ind. 418, 419, and cases cited; Swales v. Jackson, 126 Ind. 282, 285, 286; Browne on Stat. of Frauds (5th ed.), §§465-490. This doctrine applies to parol agreements for a lease of real estate exceeding three years. 1 Taylor’s Landl. & Ten. §§32, 49; Reed on Stat. of Frauds, §808; 1 Wood’s Landl. & Ten., §201; Nunn v. Fabian, L. R. 1 Ch. 35; Seaman v. Aschermann, 51 Wis. 678, 8 N. W. 818, 37 Am. Rep. 849; Seaman v. Aschermann,
' It is urged by appellant that the provision in the agreement to furnish and deliver water for twenty-five years falls within the one-year clause of the statute of frauds, §6629 Burns 1894, §4904 R. 'S. 1881 and Horner 189Y, and'can not’be enforced because the same is not in writing. It''appears from the-complaint that appellant owned a hydraulic head-race, and agreed to furnish water to appellee’s paper-mill, on its-real estate adjacent to said head-race, through a flume'or flumes connecting said-mill with the héád-hace. Such provisions in a lease convey to the lessee an interest in the land of'the lessor-. Noonan v. Orton, 4 Wis. 335; Spensley v. Valentine, 34 Wis. 154, 160; Gould on Waters (3rd ed.), §576.
The fifth clause of §6629 (4904), supra, providing that nó action shall be brought upon any agreement not to be performed within one year from-the making thereof, unless the same or some memorandum or note thereof was in writing, has no application to' contracts conveying an interest in land, and' therefore not to this case. Worley v. Sipe, 111 Ind. 238, 239; Wolke v. Fleming, 103 Ind. 105, 110, 53 Am. Rep. 495; Railsback v. Walke, 81 Ind. 409, 412; Baynes v. Chastain, 68 Ind. 376; Fall v. Hazelrigg, 45 Ind. 576, 15 Am. Rep. 278.
" Section 4829 Burns 1894, §3698 R. S. 1881 and Hornet 189Y,'of the law under which appellant was organized provides:" “All notes,-bonds or contracts entered into by the company, signed by the president, shall be binding on the company.” ' Appellant insists that under said provision, the contract not being in writing signed by its president is not binding on it.
In New England, etc., Co. v. Robinson, supra, appellee sued appellant upon an oral contract to insure. The statute under which said insurance company wras organized provided that said policies and all other contracts of said compány.may be made with or without the common seal of skid company, and shall be signed by the president or vice-president, and countersigned by the secretary, and, being so signed and executed, shall be obligatory on said company.
It wks urged by the appellant in said cause that under the charter it could not contract in any other manner than that specified therein. In response to this insistence the court said: “It is well settled that corporations must act within the powers conferred by the organic laws under which they are-created. This rule is not inconsistent with another, which is that corporations, along with the expressed and substantive powers conferred by the charters, take by implication all the reasonable modes of execution which a natural person may adopt in the exercise of similar powers. * * * So, when a general authority to engage in that business is given to a corporation in express terms, and there are no special restraints in its charter, it takes the power as a natural person enjoys it, with all its
■. It is .evident that said provision in the law under which appellant was organized was not intended as a restraint .upon. its general power to contract. It follows that the court did not err in overruling the demurrer to the complaint. , .
The memorandum, a copy of which is set out in the complaint, was read in evidence at the trial,, over the objection of appellant, and, this was assigned as a cause for a new trial. It appears from, the evidence given on behalf of appellee before said memorandum .was read in evidence that Miller and Newman, representing appellee, had a conference with Broderick and Hill, representing appellant, and that they .made a contract for a lease and agreed on the terms. That Miller, at the time, made a memorandum of the terms of the lease, and read the same to said agents of appellant and ap
It is well settled that conversations between parties to a controversy, in which one makes a statement of facts of which both have personal knowledge which properly and naturally calls for a denial by the other if unfounded, are admissible in evidence against the silent party as admissions by acquiescence of the truth of the statement. , The weight of such admissions depends upon the surrounding circumstances, and the strength of the probability that.the statement, if untrue, would elicit a denial. 1 Greepleaf on Ev. (16th ed.) §§197, 198; 2 Wharton on Ev.-(3rd-ed.),-§1136. The rule as to written communications,is different. Learned v. Tillotson, 97 N. Y. 1, 8, 49 Am. Rep. 508; Percy v. Bibber, 134 Mass. 404; 2 Wharton on Ev. (3rd ed.), §1103, 1154. There are circumstances, however, under, which unanswered letters are competent evidence of admission by acquiescence of the statements contained ..therein. As when the party receiving the letter has in any way invited the same, or when there is any ground to infer that he
What we have said disposes of the other causes assigned for a new trial and argued in appellant’s brief. Judgment affirmed.