Gardner v. Hazelton

Colt, J. The action is brought to recover damages for the defendant’s failure to perform his contract to convey to the plaintiff an interest in land. At the trial, the plaintiff produced a written memorandum signed by the defendant, and claimed the right to show by paroi that the agreement therein referred to. by the words “ have agreed to let, lease and give possession ” was an oral agreement of the defendant to assign to the plaintiff, as lessee, an unexpired term of a lease held by him. But the memorandum, required by the statute of frauds to maintain this action, must show in itself the subject matter of the defendant’s engagement; and paroi evidence is not admissible to prove that the contract was different from that stated in the writing, or was a contract to assign a lease, instead of a contract to lease the premises described. Farwell v. Mather, 10 Allen, 822. Murray v. Cherrington, 99 Mass. 229. Fitz v. Comey, 118 Mass, 496 100. Browne St. Frauds, § 385. The evidence offered was rightly excluded. The plaintiff then requested the judge to rule that, by the true construction of the memorandum, the plaintiff was at least entitled to the possession of the premises described as tenant from year to year. But the difficulty is that the memorandum is imperfect in not stating the duration of the leasehold interest to be conveyed. And it is settled by the decisions of this court that a leasehold interest for an uncertain and indefinite time, whether created by paroi or by written contract, is only an estate at will. Murray v. Cherrington, cited above. Cheever v. Pearson, 16 Pick. 266, 271. The judge declined to rule as requested, and further ruled that the memorandum produced was not sufficient, under the statute of frauds, to sustain the plaintiff’s action. The plaintiff now insists that, if the estate described in the memorandum is not an estate from year to year, it is at least an estate at will, and that, treating it as such, the writing is sufficient, under the statute of frauds, to sustain the action. But we do not think this claim is fairly open to the plaintiff upon this report. He did not ask to go to the jury on that ground. In his offer of evidence, he offered to prove that he tendered the consideration and demanded an assignment of the defendant’s lease. It was not suggested or claimed that he was entitled to, or was willing to accept from the defendant, a lease at will, and pay the whole consideration named; or that he had made a tender and a demand of the defendant for the conveyance of such an interest. If the claim now made had been made at the trial, the defendant might have been then prepared to meet it, and would have been saved the additional delay and expense to which he would now be subject, if this position of the plaintiff were sustained. The point must be deemed to have been waived by the plaintiff. Judgment on the verdict.