Friedhoff & Co. v. Smith

Maxwell, J. This is an action brought in the district court of Platte county by Smith against the plaintiffs in error to recover the balance due for the rent of certain premises for one year on a verbal lease. The answer is a general denial and plea of payment. A verdict was rendered in the court below in favor of Smith for the sum of $210, upon which judgment was rendered. The cause is brought into this court by petition in error. It appears from the evidence that Smith rented a storeroom to the plaintiffs in error for the period of two years from the first day of March, 1880, at the rent of $40 per month, payable monthly; that the plaintiffs entered into possession of the premises, and remained in possession until September, 1880, when during’ Smith’s temporary absence from the state they abandoned the premises, leaving the keys with Smith’s clerk in an adjoining store. Smith kept the store-room subject to the use and control of the plaintiffs in error until March 1st, 1881, and then demanded the balance of the rent, which the plaintiffs in error refused to pay. The plaintiffs in error claim that a verbal lease for two years is absolutely void, and no action can be maintained thereon. Section 5 of chap. 32 Comp. Stat. provides that: “Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be. void xmless the contract, or some note or memorandum thereof be in writing, and signed by the party by whom the lease or sale is to be made.” A parol contract for the leasing of land for a longer period than one year is void; that is, there is no authority [7] to make the lease, but a verbal lease for one year is valid; and if the tenant enter into possession under a lease void by the statute because not in writing, and is to pay rent at stated periods within the statute, the lease may be valid for the length of time the parties had authority to enter into the contract. Here was a lease for twenty-four months, under which the tenant took possession. The parties had authority to make a lease for twelve months, and it is only the excess that is void, and it is void only because of the limitation upon the power to make the contract, but to the extent of the authority the lease is valid. The lease, therefore, was valid for one year. The question whether the lease was from month to month or by the year was properly submitted to the jury. It is clear that justice has been done, and the judgment is affirmed. Judgment affirmed.