Burns v. Crowley

McAvoy, J. This action is for damages for an alleged breach of contract of lease. The complaint states that the defendant, under a written indenture of lease, executed by him as tenant and by [67] the plaintiff Annie M. Bums as landlord, agreed to pay the sum of $4,620 as rent for the period commencing March 1, 1929, and ending May 1, 1930. The plaintiff sought a judgment- for the entire rental sum of $4,620, the defendant never having taken possession of the premises in question. The defendant’s negotiations were had with a representative of Fish & Marvin, real estate agents for the owner of the premises. After the preliminary negotiations, a Miss Sivalls, an employee of Fish & Marvin, drew a lease reciting therein the name of William J. Burns as landlord, and sent it to the defendant for his signature. The defendant signed the lease as so prepared with the name of William J. Burns as landlord and returned it so executed with his check for a month’s rent to Fish & Marvin on December 28, 1928. On January 6, 1929, after the defendant and his wife had visited the premises, they found that a storm had flooded the place and decided not to enter into occupancy and so notified plaintiff’s representative. After the defendant had sent his executed lease to plaintiff’s agent, Miss Sivalls " changed the name [in the executed lease] from William J. to Annie M. Bruns.” The defendant never at any time “ wrote or stated orally that he consented to the change.” Plaintiff’s agent sent the changed lease to the defendant on January 7, 1929, with a letter. The contract of lease on which plaintiff relies was never entered into by the defendant as a party thereto and he cannot be held without his consent. The defendant cannot be said to have accepted the new offer comprised in the forwarding of the lease and letter of January 7, 1929, by a so-called “ acquiescence ” which the plaintiff claims is evidenced by the fact that the defendant when he received the new changed lease on January 8, 1929, did not voice an objection. We do not find any acceptance of such an offer manifested by any overt act of defendant. The alteration of the landlord’s name in the lease, after being signed and delivered by the defendant, without defendant’s consent, voided the lease. The judgment should be affirmed, with costs. Finch, P. J., and Martin, J., concur; O’Malley and Townley, JJ., dissent and vote to reverse and direct judgment for plaintiff as prayed for in the complaint.