Christiancy J.:
Two errors are assigned by the plaintiff in error, (who was also plaintiff below): 1st. That the Judge erred in holding the agreement proved to be void under the Statute of Frauds; and, 2d. In holding that the plaintiff, under his declaration, could not recover, because the defendant never entered into possession.
Whether the first question properly arises in the case, depends upon the question, whether the agreement-proved constituted, of itself, a lease, or present demise, or only a contract for a lease or future letting.
By Chap. 80, Sec. 6, of the Revised Statutes of 1846, (Comp. L., §3177,) it is declared that “no estate, or interest in lands, other than leases for a term not exceeding one year, nor any trust .or power over or-concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing,” etc. By the 8th sec-., tion of the same chapter: “ Every contract for the., leasing for a longer period than one year, or for the* sale of any lands, or any interest in lands, shall be *118void, unless the contract, or some note or memoranda thereof, be in writing, and signed by the , party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized by writing.” These two sections clearly adopt the well known common law distinction between a lease and a contract for a lease. If the contract constitutes a lease of itself, it can be effected only by the sixth section, above cited; if only a contract for a lease, or future letting, it will be governed by the eighth section. If a lease, then the question intended to be raised by the first assignment of error is fairly presented — whether it is void, because the term, though but for a year, yet being made to commence in future, extends beyond a year from the time of the demise ? If, however, the •agreement was but a contract for a future letting, or lease, then as a letting, or lease, by the plaintiff at the time agreed upon, would constitute a performance of the contract, and as the agreement was made in April, for a term to commence on the first day of May, in the same year, no such question can arise, nor any question under the first clause of the second section of the next ■ chapter, which requires “ every agreement to be in writing that, by its terms, is not to be performed within one year from the making thereof.”
The plaintiff’s counsel. contended, in the Court below, and insists here, that the agreement proved constituted, ■of itself, a lease, or present demise, of a term to commence in futuro, and he does not claim to recover upon any other ground. And if the agreement only amounted 'to a contract, on the part of the plaintiff, that he would thereafter let the premises, and on the part of the defendant, that he ■ would thereafter take them on the terms proposed, then, .as the defendant never went into possession, the only breach which could be assigned *119Would be his refusal to take and become tenant, etc,; and the present declaration is not properly framed for such a purpose. It was, therefore, incumbent on the plaintiff to prove a present demise. The general features of difference between a lease, or present demise, and a contract for a future letting, are well understood, though the line of distinction is often difficult to trace, in its application to particular cases; and there is much conflict in the authorities. The question has generally arisen, as one purely of' law, upon the construction of the language of a written instrument, the distinction being often made to turn upon very slight differences of phraseology, though it is always a question of the intention of the ■ parties. But in the present case, the agreement being merely verbal and informal, and to be gathered from conversations, and the evidence being, in some respects, conflicting, the question was one of fact ■ — -what the contract was; or, at most, one of mixed law and fact. So far as it depends upon the facts, we cannot review the evidence — the case being brought up on exception and writ of error, and not upon a case made for review upon the facts. We must take the facts to be such only as the Judge has stated them in his finding, and to which we can add no fact not found more than in the case of 'a special verdict. We can look to the testimony only so far as to see its tendency, and whether there was evidence, tending to support the finding; and we can review the finding only so far as to see whether his legal conclusions are warranted by the facts found, or what judgment was warranted by such facts. We have not the aid usually afforded upon the question of construction, by the very language in which the agreement was expressed. The Judge has not stated it in his finding, which would, probably, have been impracticable; and if he had stated the whole conversation between the parties, the intent *120of the parties, which constitutes the contract, would, probably, be but a mere question of fact, or an inference of fact, to be drawn from such conversation. But, at all events, to warrant us in pronouncing the agreement an actual demise, the Judge should either have expressly found it to bo a lease or demise, or that such was the intention of the parties, or should have stated such facts as would lead to such a conclusion, as one of law. If he has only found such an agreement, or such facts, as leave the question open, whether it was a lease or a mere agreement for a future letting, then, as the burden of proof was upon the plaintiff we are not authorized to pronounce it a lease, and the plaintiff must fail. Now, it seems to me the Judge has purposely and" carefully avoided finding the agreement to be a lease, or present demise. His finding of the contract is in these words: “ That an agreement was made some time in the month of April, 1860, and before the twentieth day thereof, for the letting, on the part of the plaintiff, and the hiring, on the part of the defendant, for one year, from May 1st, 1860, of a certain house and premises, in the declaration described, at and for the annual sum of three hundred and fifty dollars, j>ayable quarterly; and that said agreement was not in writing,- but was made by parol.” Now, this statement would be equally true, and the language quite as appropriate, if the agreement intended to be found was only an agreement for a future letting, and not a present demise.
Pías the Judge stated any other fact, from which Avé‘ are authorized to .find a present demise ? The only other statement in the finding, Avhich can be claimed to haAre any bearing upon the point, is the subsequent statement, “ that, by said agreement, said defendant had a right to take possession on May 1st, 1860, and that said premises wei;e ready for his *121occupancy on that day, and thenceforth for a year.” Now, so far as this statement relates to the right of entry, it is, in form at least, but a statement of a legal conclu-: sion; and no facts are given as the foundation for such a conclusion, excejrt the contract previously stated, and' •the further fact that the premises were ready for his occupancy. But whether this be stated as a fact, or a conclusion of law, the right of entry, and the fact that the premises were ready for defendant’s occupancy, are quite as consistent with a mere contract for a future letting, as with an actual demise. In fact, the right of entry is so general an' incident of a contract for a lease, that it is sometimes stated generally, without qualification, that such agreement will operate as a license to enter upon the premises agreed to be demised. — Taylor's Landlord and Tenant, Sea. 37.
It further appears from the finding that, in fact, the defendant never entered into possession of the premises, nor used the same.
While, therefore, we think the Judge, by not properly distinguishing ‘ between a lease and an agreement for a lease, under the statute, erred in holding the agreement void because not in writing, it was not an error which operated to the prejudice of the plaintiff, as no judgment in his favor was authorized by the facts found. This disposes of the case; but it may not be improper to intimate an opinion upon the question raised by the second assignment of error, which, wo arc inclined to think, must lead to the same result. The declaration is peculiar. It does not, we think, fairly allege a demise, or present letting, by the plaintiff, as claimed by his counsel. If the agreement was relied upon as a demise, there were but two proper modes of stating it: 1st. By its legal effect — that the plaintiff did demise, let, or lease, etc.; or,. 2d. By setting forth the agreement in such manner, as to show to the Court *122that such was its legal effect. But the statement of the plaintiff’s agreement is such, that it would be fully* satisfied by proof of a mere agreement for a lease. This -is the whole consideration stated for the defendant’s actual renting and hiring, as the declaration immediately proceeds to state that “ the defendant, in pursuance, and in consideration of, the agreement, did actually rent and hire, of the said plaintiff1, the said premises, for the period and at the rent aforesaid.” This actual renting* and hiring is not supported by the consideration stated, unless the agreement be so stated as to constitute a present demise. Yet it is this alleged renting and hiring by the .defendant, which furnishes the only inference that the agreement on the. part of the plaintiff was intended to be stated as a demise; but to give this any effect in supporting the statement of the agreement as a demise, would be arguing in a circle. The declaration, after tlie words last quoted, proceeds: “ And possession thereof was duly delivered to him by the said plaintiff, and by him held and enjoyed,” etc., “by means whereof the said defendant became liable to pay to said plaintiff the said sum of, etc., in manner aforesaid; and being so liable, the said defendant undertook and promised,” etc.
Now, as no actual tenancy — no relation of landlord and tenant — is created by. an actual demise, without entry, we think, by any fair construction, we must infer from this declaration, that the plaintiff did not intend to found his claims merely upon the agreement stated, whatever that agreement was; but in part, at least, upon delivery of possession, or the tenancy. No direct promise to pay is stated, except that which follows the statement of the tenancy, as in a declaration for use and occuj)ation, and that promise is stated as being, in part at least, in consideration of the liability growing-out of the delivery of possession — in other words, out *123of the tenancy; and though the usual words, “in consideration thereof,” are omitted, the whole context, shows the effect was intended to be the same as if they had been inserted. This, therefore, as stated, is a part of the consideration alleged for the promise; and it is not •a part which is idle, frivolous, Or of no value, and which can, therefore, be rejected as surplusage.
Admitting, therefore, that a present demise is suffi•ciently alleged, this is still a case where the consideration is stated as consisting of two parts, each of which is material and pertinent, and but one of which, has been proved; and though one of these considerations alone, had it been so alleged, would have been sufficient to sustain the promise, still it is a fatal variance, as it is not the consideration alleged. — See 1 Chitty’s Pl., 327-328. The Judge was, therefore, correct in holding that the plaintiff could not recover under this declaration, because the defendant never went into possession.
The judgment of the Circuit Court must, ■ therefore, be affirmed, with costs.
Martin Ch. J. concurred.
'Campbell J.:
I think the declaration in this cause sets forth unequivocally an executed contract to lease, under which-possession is alleged; and that the liability to pay rent is dependent, under the allegations, upon the completed lease and possession, which are not proved. The finding, I think, is of an executory contract only, and the breach of such a contract is failure to accept possession, ■and not failure to pay rent, in 'the absence of an independent promise or covenant. I concur in the general 'views of my brother Christiancy, and in the result at •¡which he has arrived.