Way v. Fraser

Opinion by Mr. Justice Elkin, On demurrer the learned court below entered judgment [53] for defendant from which judgment so entered this appeal was taken. Appellants contend that their theory of the case was misapprehended in that it was treated as a suit on a lease when it was only intended as a suit for the breach of a contract to make a lease. It is perfectly clear, however, that no matter whether the suit was on an executed lease or on a contract to make a lease which in point of fact was not executed, the burden was on plaintiffs to aver sufficient facts to show a valid consummated contract. As we view the case this burden was not met. The correspondence between Loveless, Way and Fraser, set out in the statement of claim and relied on by appellants, falls far short of constituting either a contract of lease or a contract to lease. We agree with the learned court below that the Loveless letter was only an expression of his willingness to negotiate for a lease and was not a definite offer containing the terms and conditions upon which he would lease the property. The most casual reading of the letter shows that further negotiations were intended and no final conclusion had been reached. He expressed his willingness to make a lease for three or five years at the rental suggested and asked Way to “let me know sometime soon” if this offer interested him. These words do not import finality but do suggest further negotiations. Nothing was said as to the time when possession was to be given, or whether the rental should be paid monthly or yearly, what kind of business should be conducted, whether the lessee should have the right to sublet and how the rent should be secured. All of these matters, important in every contract of lease, were clearly intended to be taken up and determined by'the parties when the final agreement was made. When, therefore, Way took upon himself the right to execute a lease with all of the terms and conditions stipulated he assumed to act before any final agreement had been consummated. Loveless was not bound to accept the lease thus prepared by Way and he did not do so. So far as the letters show Loveless never [54] did enter into a final agreement to lease the property in question. Fraser notified Way in writing that they had concluded not to go into business and would “not be open for a lease at this time.” Here was positive notice before any final agreement had been reached so far as is disclosed by the letters relied on that the parties who were negotiating for a lease had concluded not to make it. The conclusion is irresistible that the appellants failed to make out a case showing a contract by the writings set up. It is contended, however, that Way had a conversation with Loveless during the time the negotiations were pending and that Loveless had agreed to make the lease. If this parol agreement is relied on, it is invalid because clearly within the statute of' frauds. The averment is that Way “had a conversation with W. B. Loveless and agreed with him on a lease for said property to W. B. Loveless and W. P. Fraser for three years at four thousand ($4,000) dollars per year.” This is a positive averment that a lease of the property had been agreed upon in that conversation and it follows as of course that this suit is based upon the breach of the contract set up. The parol contract set up was a lease of the property for a term of three years. Such a contract, if made by parol, is within the statute of frauds and therefore invalid. It is argued, however, that the conversation relied on was in the nature of a verbal offer to lease and the acceptance by the lessor who executed and tendered a lease in writing meets the requirements of the statute. This would be true if the acceptance was unconditional and in compliance with the terms of the offer. In the present case the acceptance was not unconditional nor was it in accordance with the averments set out in the statement as above indicated. The averment is that Loveless agreed with Way on a lease for three years at $4,000 per year. The import of these words is an annual rental and a three-year term. The so-called acceptance was an executed lease stipulating a monthly rental in advance and many other terms and conditions which it is not even averred [55] were agreed upon. The proposed lessees were not bound by a lease containing terms not agreed upon and not in accordance with the alleged parol offer. We are of opinion that the averments are not sufficient to show a valid binding contract to lease the property or an executed agreement of lease accepted according to the terms of the offer. In either event the record fails to disclose a good cause of action. The case was very thoroughly considered by the learned court below and we coneur in the views there expressed. Judgment affirmed.