Briar v. Robertson

Hall, J. This case involves the construction of section 2513, Revised Statutes of 1879, which, so far as relates to this case, is as follows: “No action shall be brought to charge * * * any person upon any contract for the sale of lands, tenements, or hereditaments, or an interest in or concerning them, or any lease thereof, for a longer time than one year ; or upon any agreement that is not to be performed within one year from the making thereof; unless the agreement * * * shall foe in writing.” The single question in the case is, is a verbal lease for one year valid, or invalid, under this section, when made in January, but not to commence until March 1, following? In other words, does such a lease come within, or is it excluded from that clause of the section, “ or upon any agreement that is not to be performed within one year from the making thereof ?” Upon this question, Taylor, in his work on Landlord and Tenant (6 Ed.) section 30, says: “By the English statute of frauds, also, every agreement, not in writing, and signed by the party to be charged therewith, or his authorized agent, is void, that, by its terms, is not to be performed within one year from the making thereof. A verbal agreement to lease lands for such time, must, therefore, by the English authorities, commence from the making of the agreement, and cannot be made to commence at a future day. But the Revised Statutes of New York have omitted the expression, ‘within one year from the making thereof,’ which was held to prohibit the creation of an estate for a year, commencing in future, and the court of appeals in that state now hold, that a parol lease of lands for the term of Dne year, to commence at a period subsequent to the day when the contract was made, is valid.” Browne, in his work on the Statute of Frauds, section 272, says : “ In that clause of the statute of frauds which we [70] have now to consider, we perceive still another restriction placed upon the formation of binding contracts by mere verbal understanding. We have seen, that all verbal promises to answer for the debt, default or miscarriage of another; all agreements made upon consideration of marriage, and all contracts for an interest in real estate, must be reduced to writing in order that any action may be supported upon them, or advantage taken of them ; and we shall see hereafter that the samé is true of certain bargains for goods, wares and merchandise. All these provisions relate to the subject matter oi the contract. But that which is at present before us relates to the period of the performance of the contract. It manifestly includes them all to a certain extent; that is, a contract which anyone would render invalid, on account of the subject matter, may be, so to speak, doubly invalid, if it is to be of longer than a year’s duration.. But includes, also, all those contracts which are of such a duration, whatever be their subjectmatter.” Discussing this question, the Supreme Court of Massachusetts, in the case of Delano v. Montague (4 Cushing 44), said : “ Upon these facts it is very clear that the action cannot be maintained. This was an agreement that was not to be performed within one year from the time it was made; and by the Devised Statutes, chapter seventy-four, section one, no action can be maintained on any such agreement, unless the same, or some memorandum or note thereof, shall be in writing.” In that case the plaintiff declared on a parol contract, which was proved to have been made on the third of March, 1847. The defendant was then in possession of the premises, under a written lease from the plaintiff, it a rent of $75 a year, which was to terminate on the first day of April, then next following. And it was proved that, on the said third of March, the defendant agreed with the plaintiff, but not in writing, that he would take the premises for another year at the same rent. To the same effect are Parker’s Administrator v. [71] Hollis & Alexander (50 Alabama 411); and Wheeler v. Faulkenthal & Bro. (78 Ill. 124.) These authorities are in point. By them, and by the language of the statute itself, we are convinced that the lease in this case was invalid; that it comes within that clause of the statute, “ or upon any agreement that is not to be performed within one year from the making thereof.” The lease being included in that clause of the statute, the time began from the making of the contract, and not from the commencement of the performance. Sharp v. Rhiel, 55 Mo. 97. This case was tried upon an agreed statement oi facts. Upon these facts, as we think, the trial court should have found for the defendant. Therefore, the judgment of the circuit court is reversed. All concur.