Paris v. Johnson

DOWDELL, J. This is an action brought by the plaintiff, the appellant, to recover damages for breach of covenant in a lease contract of land. There are several assignments of error, based on rulings of the — 407 — court below on tbe pleadings and on the admission and exclusion of evidence; but all of these we need not consider in detail. The vital question in the case arises on the plea setting up the statute of frauds as a defense to the action. The lease is in writing, and is signed, “James F. Johnson, by R. D. Johnson, Jr.,” and is also signed by the plaintiff. The contention of the defendant, appellee here, is that his name was not signed to the lease by one thereunto lawfully authorized in writing by him to do so. The statute (section 2152 of the Civil Code of 1896) is as follows: “In the following cases, every agreement is void, unless such agreement or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing * * * (5) Every contract for the sale of lands, tenements, or hereditaments, or of any interest therein, except leases for a term not longer than one .year, unless the purchase money, of any portion thereof, he paid, and the purchaser be put in possession of the land by the seller.” In the case before us the contract is in writing, and subscribed by one purporting to be the agent of the defendant. The pivotal question presented for consideration is whether R. D. Johnston, Jr., who •signed the defendant’s name to the lease, was thereunto in writing by the defendant lawfully authorized to do so. As to what may constitute a writing sufficient to take the transaction without the influence of the statute of frauds, we think there can be no' doubt that the principle is the same whether the question relates to a trans: ■action directly between the parties, or where the party •sought to he charged has acted through an agent; and upon the same principle that a compliance with the — 408 — requirements of the statute, that the agreement, or some note or memorandum thereof, expressing the consideration, must be in wanting, and subscribed by the party to be charged therewith; may be shown by a number of writings properly connected; so may the authority given to another to act be shown in a number of writings, when likewise properly connected. The question as to what may be sufficient to satisfy the demand of the statute and relieve the contract from its ban was well considered in the case of Jenkins v. Harrison, 66 Ala. 345, and most ably discussed in the opinion by Brickell, C. J. The principles stated in that case have been followed by this court in Homan v. Stewart, 103 Ala. 644, 16 South. 35, and in White v. Breen, 106 Ala. 159, 19 South. 59, 32 L. R. A. 127, as well as in other cases. The contract may be evidenced by one or more writings, or may be shown entirely by correspondence; and upon principle, the authority to the agent may in like manner be shown. It is not denied that R. D. Johnson, Jr., who executed the lease contract in the name of the defendant, James F. Johnson, was the agent of the latter for the purpose of renting out the defendant’s property and collecting the rents on the same. The defendant resided in Ashe-ville, N. 0., and the agent, R. D. Johnston, Jr., resided in the city of Birmingham, Ala. The correspondence between the defendant and the agent which was introduced in evidence unquestionably authorized the making of a. lease of the property in question to the plaintiff by the agent. But it is contended by the defendant that there was a limitation put upon the power and authority given the agent by him, which was exceeded by the agent in the execution of the lease contract, and therefore the contract sued on was not executed by one thereunto lawfully authorized in writing by him. The — 409 — point made is that the contract of lease authorized to be made by the agent, as shown by the authority conferred in writing, namely, the correspondence between the defendant and his agent, R. D. Johnston, Jr., required that security for the payment of the rents should be given by the lessee, and that no security, as provided for in the power conferred on the agent to make the lease, was given by the plaintiff or taken by the agent at the time of the making of the lease contract. The contract was executed in August, and the term of the lease was to begin in October the following year. The contract contained all the stipulations as to the lease agreed on by the parties, except that it was silent as to the security to be given for the payment of the rents. The power and authority given the agent by the defendant did not direct or require that the security for the rents should be expressed in the lease contract, nor was the kind or character of the security designated. The contract, when made, was delivered to the defendant, who received it without making any objection, and kept the same until some time the following year, not long before the term of the lease was to begin, and until after rents on property in the city of Birmingham had materially advanced. At the date of the execution of the contract the plaintiff paid the agent $100 in cash, which was one-half of the first month’s rent; the remaining half of the month’s rent, by the terms of the contract, to be paid by repairs made on the property when the plaintiff went into possession of the same. The $100 cash paid to the agent was by him placed in bank to the credit of the defendant in the course of the agent’s transactions with his principal. At the time of the contract and the payment of the $100 cash, the agent gave a receipt for the money, indorsing on the receipt that the question of security would be taken up a year — 410 — hence, which was a month before the beginning of the term of the lease. Within the time fixed by the agent, and before the commencement of the term of the lease, the plaintiff offered to give the security; but it was declined, not because of any insufficiency, but because-the defendant refused to abide the contract. The repudiation of the contract by the defendant was upon the. ground that the security was not given and taken when the contract was executed. There was authority in Avriting from the defendant to his agent, R. D. Johnston, Jr., to make the lease of the storehouse. This met the statute of frauds. That the agent exceeded the limitation put on his power in making the contract, in not at the same time taking security for the payment of the rents, does not, we think, involve the question of the statute of frauds, but a wholly different proposition, going to the insufficiency of the contract to' 'bind the defendant for the failure of the agent to take the required security at the date of its execution. This [failure to give the (required security would no doubt furnish the defendant a. just and reasonable excuse for repudiating the agent’s action. But the condition is such a one as may be expressly or impliedly waived. Moreover, as stated above, the kind or character of the security was not designated, the requirement only being that security for the payment of the rents should be given, and this the plaintiff offered to do long before the commencement of the term of the lease. No time being fixed for the giving of the security, the offer by the plaintiff to give, and his expressed readiness when the contract was executed to give it whenever the agent requested, was such a compliance on his part with the terms of the contract, as authorized by the defendant, as would bind the defendant. The proper measure of damages .in such .a case is, we think, the — 411 — difference between the contract price of the lease and the fair and reasonable amount for which the property might have been rented at any time subsequent to the date of the contract and up to the time of the commencement of the term of the lease as fixed by the contract, for the same term; and the purposes for which the parties understood the leased property to be used would become an element in the determination of values. The view we have taken of the case compels a reversal of the judgment appealed from, and what we have said will indicate the errors committed by the lower court on the trial of the cause, and will also serve to guide the court’s action on another trial. Beversed and remanded. Tyson, C. J., and Anderson and McClellan, JJ., concur.