78 Mo. 344 | Mo. | 1883
The conceded facts of this case are substantially that the appellant bad leased, in 'writing, from respondent, for a term of three years, a brick store-house in the city or town of Trenton, in Grundy county. This lease by its terms would end November 2nd, 1877. In December, 1876, during the existence of this lease, the appellant being anxious to have the use of an unfinished basement to this store-house, which was not embraced within the terms of tlie written lease, proposed to respondent that if he would fit up this basement for a carpet room for appellant’s use, he would pay respondent $100, and continue the lease of the store-house, including the basement, for two years after the expiration of the term of the written lease, at a -rental of $66.66 per month. Accordingly respondent immediately so fitted up said basement at an expenditure of $300 or more. Appellant paid him the $100, and took possession of said basement room, and continued to hold it and the store-room until the expiration of the original three years’ lease, when he quit the premises without notice to the landlord, and refused to pay any rent afterwards. Respondent instituted this action against appellant in a justice’s court to recover the first month’s rent accruing from and after the 2nd day of November, 1877, amounting to $66.66. Judgment by justice for respondent for this sum. Appellant appealed to the circuit court, where on a trial de novo,
The-appellant seeks a reversal of the judgment chiefly on two grounds: • First, because the contract concerned lands and tenements, and not being in writing, signed by the party to be charged therewith, was void under the provisions of the Statute of Frauds; second, because the agreement was not to be performed within one year from the making thereof, and not being in writing, is void by operation of said statute.
I do not deem it necessary to discuss the many questions raised and so forcibly argued by counsel in their briefs. The Statute of Frauds is a crude and intricate piece of legislation, and in judicial determinations has produced divers conclusions, anomalies and confusions. No mind may reasonably expect to harmonize or reduce from the mass of discussion and leaniing any common basis acceptable to all courts and text makers. In the multiform issues springing from this most prolific womb of strife, each case must, in a measure, be determined by its own peculiar circumstances.
The lessee was already in possession of the store-house, and by this agreement he obtained, entered into and occupied the carpet room, in conjunction with the store-house. The agreement, in the language of Ames, J., in Shaw v. Farnsworth, 108 Mass. 359, “ was not to take a lease of the house, but to take the house for a specified term, and a
The 1st section, chapter 62, Wagner’s Statutes, did not make a verbal lease for a. term of years void, but a lease “ by parol * * shall have the force and effect of leases at will only.” Under this section it was held, in Kerr v. Clark, 19 Mo. 132, affirmed in Ridgley v. Stillwell, 28 Mo. 400, that such a lease had the effect of creating a tenancy from year to year.
In 1869 the legislature enacted the following provision: “A tenancy at will or by sufferance, or for less than one year, may be terminated by the person entitled to the possession by giving one month’s notice, in writing, to the person in possession, requiring him to remove; all contracts or agreements for the leasing, renting or occupation of stores, shops, houses, tenements or other buildings in cities, towns or villages, not made in writing, signed by the parties thereto or their agents, shall be held and taken to be tenancies from month to month, and all such tenancies may be terminated by either party thereto, or his agent, giving to the other party, or his agent, one month’s notice, in writing, of his
It is important to mark the language of this section : “All contracts or agreements for the leasing, renting or occupation of stores, shops, houses or other buildings, in cities, towns, etc., not in writing, shall be held and taken to be tenancies from month to month.” Under this section a verbal agreement is as effectual, in respect to leases in towns, etc., as if made in writing. The only limitation placed on it by this statute is, that it shall operate only as a tenancy from month to month. The premises in question consisted of a store-house in town. The contract or agreement made the tenancy, although not in writing, and the action could be had on it for the month’s rent the same as if it had been in writing.
And even conceding, for the sake of argument, that an actual entry on the premises under the contract was necessary, it is not perceived that this requirement is not met by the facts of this case. In December, 1876, the new agreement was made. By it the carpet room was added as a present interest to the existing lease. The $100 paid therefore was not the sole consideration of the new agreement. But parcel and part of it was the present joint occupancy of the whole house, and to be continued for two years from and after the 2nd day of November, 1877. The contract, like the occupancy, was a unit. It was not sever-able. The tenant only wanted the carpet room as an appurtenant to the store-room, and the landlord did not fit up the carpet room for the $100 alone, but for the further consideration of the continued occupancy of the store-house. They Were inseparable. No rental was fixed on the carpet room as such. It and the store-room together were to yield $66.66 per month.
Now, there can be no question, even under defendant’s theory, but that the plaintiff was entitled to recover for the carpet room, inasmuch as there was actual occupancy of it under the contract. But how, under the facts of this case,
The Statute of Frauds, relied on by the defendant, cannot avail him. A party to a verbal agreement ought not to be permitted either to enjoy its fruits on the one hand, or to suffer his confiding co-contractor to wholly perform on his part, and then to shield himself against performance by pleading this statute. Here the respondent altered his condition on the faith of this agreement. He paid out $300 in money in equipping the basement at appellant’s request, placed him in possession of it, and inside of the year performed the whole contract on his part. This is not met by the suggestion in appellant’s argument that there yet remained on the lessor’s part the duty to permit the lessee to
Finally, appellant contends that although the lessor performed “ everything on his part within the year, if a longer time is stipulated for the performance by the other,” the case is still within the statute, citing Lockwood v. Barnes, 3 Hill 128; Broadwell v. Getman, 2 Denio 87; Pierce v. Baine, 28 Vt. 34, and other cases. We concede this, with some qualification, to be the ruling in Massachusetts, Vermont, Now Hampshire and New York. But it is opposed to the weight of authority in England and we think in America. Cherry v. Heming, 4 Exch. 631; Donellan v. Read, 3 Barn. & Ad. 899, (23 E. C. L. 215;) Hoby v. Roebuck, 7 Taunt. 157, (2 E. C. L. 57;) Souch v. Strawbridge, 2 C. B. 808; Boydell v. Drummond, 11 East 152; Smith v. Neale, 2 C. B. N. S. 67; Berry v. Doremus, 30 N. J. L. (1 Vroom) 403; Haugh v. Blythe, 20 Ind. 24; Curtis v. Sage, 35 Ill. 22; Morgan v. Bitzenberger, 3 Gill (Md.) 350; Johnson v. Watson, 1 Kolley 348; Rake v. Pope, 7 Ala. 171; McClellan v. Sanford, 26 Wis. 595.
In this State, whatever may be said against it, the Supreme Court is in accord with the cases last cited. In Blanton v. Knox, 3 Mo. 342, the court cites with approval an old English case which held that whore “ all that was to be done on one side was to be done within the year,” as sufficient to take the case out of the statute. In Suggett v. Cason, 26 Mo. 221, 225, Scott, J., says: “ The contract having been entirely performed on one side, the other side cannot interpose the defense arising under this section,” (the 5th section in question). And this learned judge cites with approval the leading English case of Donellan v. Read, supra. Counsel express surprise that Judge Scott should cite the case last named in support of the case under consideration, as it was not germane. The case may have been inapplicable, but its approval indicates the judicial mind of our Supreme Court. It is not every obiter dictum that is
A departure at this day from the adjustment of this question in our State, would be an inñovation with no apparent compensation. On so vexed a question stare decisis is the watchword. It is needful not only to the bench and bar, but for the repose of society. The observation of Dixon, C. J.,in McClellan v. Sanford, supra, touching those cases holding the opposite view of this controversy, commends itself to my mind: “ Whilst they adhere to a strict and literal construction of the statute in order to close .the door to the mischiefs which they suppose the statute was designed to prevent by excluding parol evidence, * * they yet seem to leave the door wide open to the same mischiefs by allowing parol evidence, to be introduced to show what the contract was, and what the price or sum agreed to be paid, for the purpose of enabling the promisee or creditor to recover upon a quantum meruit or quantum valebat. The advantage of this course of decision is not perceived.”
I discover no error in this record, and the judgment of the circuit court should, therefore, be affirmed.