Spear v. Orendorf

Bowie, C. J., delivered the opinion of this Court. The appellant having instituted summary proceedings against the appellee, to rem >vo him from premises which he claimed to hold under a parol contract for a lease, the latter filed his bill for specific performance, and as auxiliary [42] thereto, prayed for an injunction, from the order granting' which this appeal is taken. The bill alleges that the appellee, being in possession from the 1st of February, 1864, to 1st of February, 1865, under a previous letting at a reduced rent, it was (towards-the close of the term), agreed, between the appellant and appellee, that if the latter would pay the former the increased rent of $1,500 per annum, the appellant, Spear, would execute to the appellee, Orendorf, a lease of the-premises for the term of one year, with the privilege of extending the same two- or three years, etc.; that confiding in this agreement, the tenant did not attempt to cause the lease to he reduced to writing for some-short time after the period at which the tenancy was to begin, to wit, the 1st of February, 1865, but continued in possession of the premises in the faith that the said Spear would execute the lease at any time when tendered to him, as he had engaged and promised to do ; that some time after he was surprised at receiving from Spear for his, the tenant’s execution, the paper filed, marked S. 0., No. 3, which provided for a lease for one year, with the privilege-of two years, and not the privilege of two or three years, etc.; and that the tenant paid the rent of$1,500 for the year 1865, notwithstanding which, he has received notice to quit on the 1st of February, 1866, and proceedings at law have been instituted to remove him, which he prays may be enjoined. The complainant charges he is entitled to-a written lease-from Spear, for his protection and defence, and for the purpose of giving to him a term of three years iu the property from the 1st of February, 1865 ; and if he is not entitled to as. term of three-years, as he insists he is-,, he is entitled to a lease for one year from the date aforesaid, with the privilege-of a second year, &c. [43] He avers, that he paid the rent of $1,500 for the last ’year, as part and parcel of the agreement, and in performance and consideration thereof, and not-otherwise, and that he hath further carried oat the agreement in all particulars, and has remained in and occupied and kept the said premises in such performance and on such-consideration, ■only. Wherefore he prays specific performance of the ■agreement on the part of the said Spear. The injunction being ancillary to the relief prayed, if the -case made by the bill is such that a Uourt of Equity would not, on final hearing, grant the principal relief upon full proof of the allegations, the injunction should be dissolved. Geiger vs. Green, 4 Gill, 475. It is objected on the part of the appellant, that the contract as charged is uncertain, unreasonable and wanting in mutuality, and therefore should not he performed. The bill professes to set out by specific allegations, and by reference to exhibit ISTo. 2, “the true terms of the agreement and stipulations contracted for” between the complainant and defendant. If such an agreement had been reduced t© wilting and executed, there can he no donbt it would be sufficiently certain for all purposes. The option of extending the term two or three years, was a privilege to he exercised by the tenant during the term, not to be 'fixed by Mm as a part of the lease. Such privileges are not uncommon, and though dependent on the will of one of the parties, they do not impair the mutuality of the contract. Mutuality of a contract means an obligation on each to do or permit to be done, something in consideration of the act or promise of the other. It does not imply that every ■stipulation is absolute and unqualified. The landlord, according to the theory of this bill, in consideration of the -agreement of the tenant to pay the additional rent ©f [44] $1,500, agreed to give him a lease for one year, with a privilege of extending the term to two or three years, etc. If the landlord had executed the lease, the tenant would have been hound to pay the rent; on the other hand, if the tenant paid the rent “on the foot of the agreement,” the landlord was hound to execute the lease according to the terms. In Geiger vs. Green there was no contract; the paper executed by Mrs. Owings was a mere license, without any consideration paid or promised to he paid by Green, “a privilege to be exercised or not, at his pleasure, and imposing no corresponding obligations.” “It is abundantly settled, that if one who is already in possession of land as tenant, verbally contracts with the owner for a new term, his merely continuing in possession after the making of the alleged contract, is not an act of part performance within the meaning of the rule so as to justify a decree for a lease according to the contract. In such a case, the continued holding is naturally aud properly referable to the old tenancy, and does not necessarily imply any new agreement between the parties.” Browne on the Statute of Frauds, sec. 477, ch. 19. ***** “The mere taking or holding of possession is of itself nothing. The question is, quo animo it is taken or held, and this is not allowed to be answered by parol proof of the agreement between the parties. In cases where a tenant continues in possession under an alleged agreement for a new tenancy, it is answered by proof of aDy act on his own part done with the privity of the owner of the fee, which is inconsistent with the previous holding, and is such as clearly indicates a change in the relation of the parties.” Ibid, sec. 478. “The payment of the additional rent is of itself an equivocal circumstance, where a claim is set up of a positive agreement for a new lease, inasmuch as it may be [45] attributed to a mere holding from year to year after the expiration of the old lease, or there may be other inducements to its payment. But where the bill to enforce such an agreement alleged that the landlord had accepted the additional rent “upon the foot of the agreement,” Lord Loughborough would not allow a plea of the Statute, but required the landlord to answer to the allegation.” Wills vs. Stradling, 3 Ves., 318. Browne on Frauds, sec. 479. Lester vs. Foxcroft, 1 White’s Equity Cases, (note) 515, in mar. ( Decided November 22nd, 1866.) The contract alleged being sufficiently certain, reasonable and mutual, the only remaining question is, whether there is such an allegation of part performance as will take the case out of the Statute of Frauds. A majority of this Court think the allegation of the complainant, “that he paid the rent of $1,500 for the last year as part and parcel of the agreement aforesaid, and in performance and consideration thereof and not otherwise,” equivalent to an averment, “that ihe landlord accepted the additional rent upon the foot of the agreement,” which was held sufficient in 3 Ves., 378, to require an answer. The complainant has therefore presented a case, which Aprima facie” entitles him to an injunction until the coming in of the answer and further order. The order of the Court below of the 8th of February, 1866, is affirmed, and cause remanded for further proceedings with costs to the appellee. Order affirmed and cause remanded with costs to the appellee.