South Baltimore Co. v. Muhlbach

Alvey, C. J., delivered the opinion of the Court. This was an action of trespass for breaking the plaintiff’s close, brought on the 15th of April, 1887. The plaintiff was in possession of the land as tenant of the defendant, and left the premises, upon notice to quit, on the last day of December., 1887. The case was tried on the general issue plea"of not guilty. It appears that, in 1871, the plaintiff leased in writing of the defendant the premises in question, for one year; the plaintiff agreeing to vacate the premises at any time upon receiving thirty days’ notice. This lease was made, on the part of the defendant, by.Greorge L. Harrison, at the time secretary and agent of the defendant, hut who has since died. The plaintiff testified in his own behalf, and proved that at the end of the year for which the written lease was made, he was going to quit, because the buildings on the j-dace did not suit him, and the defendant refused to put up others; hut that Harrison came out to the place, and made a verbal agreement with him, the plaintiff, to continue on the place as a yearly tenant, with the right to the notice of a yearly tenant; and that he, the plaintiff should put up what buildings he wanted, and when he left, "the buildings should.be paid for at what — 401 — they were worth at that time, and not what they cost to ptit them up; and that it was under this agreement that he remained in possession of the property until the last of December, 1881, when he left under a six months’ notice from the defendant. Harrison was a director in the defendant corporation, as well as secretary and agent. And because he was dead, an objection was taken by the defendant, in the first hill of exception, and also by prayer to the Court, to the right and competency of the plaintiff to testify, as to the verbal agreement made with Harrison in regard to the renting of the land. But clearly the objection is not tenable. The statute, as given in the Code .of 1888, Art. 35, sec. 1, declares that “no person offered as a witness shall hereafter he excluded by reason of incapacity from crime or interest, from giving evidence, &c., * * * and the parties litigant, and all persons in whoso behalf any suit, action or other proceeding may he brought or defended, themselves, and their wives and husbands, shall be competent and compellable to give evidence in the same manner as other witnesses, except as liereinfter excepted.” jAnd by section 2, which declares the exceptions, it is provided, that “when an original parly to a contract or cause of action is dead, or shown to he a lunatic or insane, or when an executor or administrator is a party to the suit, action or other proceedings, either party may be'called as a witness by his opponent, hut shall not be admitted to testify on his own offer, or upon the calL of his co-plaintiff or co-defendant, otherwise than now by law allowed, unless a nominal party merely,” &e. It is very clear, upon the decisions of this Court, that Harrison, though a director, and an agent of the defendant, by whom the contract was made, was not an original party to such contract, in any legal or techni — 402 — cal sense. The parties to the contract, assuming it to have been made as testified by the plaintiff, were the defendant corporation and the plaintiff; and though Harrison has since died, his death in no manner renders the plaintiff incompetent as a witness for himself. This would seem to be conclusively settled by the cases of The City Bank of Baltimore vs. Bateman, 7 H & J., 104; Downes vs. Md. & Del. R. Co., 37 Md., 100; and Spencer vs. Trafford, 42 Md., 17. The rule of exclusion would, of course, have to he mutual in its operation, if the objection of the defendant were maintainable; and as nearly all contracts by corporations or associations are made by agents, if the death of the other contracting party rendered the agent incompetent as a witness, a great many persons would be rendered incompetent who were competent, or who could have been made competent, before the passage of the Evidence Acts. Such a result would contravene both the letter and spirit of the Acts, which were intended to extend and in no manner to restrict the competency of persons to testify. And the plaintiff being a competent Avitness, the evidence given by him, and excepted to by the defendant, was clearly admissible. The second exception taken by the defendant Avas to the admissibility of certain testimony offered to be given by the wife of .the plaintiff, for the purpose of proving the verbal agreement made Avith Harrison for the renting of the land by the plaintiff. There was certainly evidence tending to show that Harrison was the agent for the renting of the land. And the sole ground of objection to the evidence offered, as stated in the exception, appears to he that, at the time of the supposed verbal agreement, Harrison was a director of the defendant corporation, and had died before the trial, and therefore “his verbal contract, agreement or — 403 — declarations could not he given in evidence against the defendant.” If it he true, as proved by the plaintiff, that Harrison was the agent of the defendant for the management and renting of its lands, it is difficult to understand why the evidence was not admissible. It was certainly competent to make a contract of renting for a year by parol; and if Harrison was the agent for routing and managing the land, a contract made by him was equally binding as if made by the defendant by an act of its board of directors. We perceive no error in admitting the evidence. The plaintiffs prayer for instruction, which was granted by the Court, was well calculated to mislead the jury, and should, therefore, have heen rejected. It was founded upon the testimony of the plaintiff himself alone, and entirely ignored all the other evidence in the case. It put to the jury to find only a part of the facts testified to by the plaintiff himself, and it utterly failed to deduce any legal conclusion therefrom, but left the jury to speculate as to the legal effect of the facts stated in the prayer. These facts thus enumerated may have all heen found by the jury to he true; and yet, in view of all the other evidence in the case, the plaintiff may not have heen entitled to recover any damages, or not entitled to a verdict at all. It was error therefore to grant such prayer. The first prayer on the part of the defendant proceeds upon the theory that the verbal agreement of renting, made by Harrison with the plaintiff, was void under the 4th section of the Statute of Frauds, 29 Car. 2, ch. 3, “'and that the plaintiff continued to hold over under such terms of the prior written lease as were applicable to his situation as tenant holding over.” The Court below rejected this prayer, and we think rightfully. The contention of the defendant is, that the verbal contract was entire and indivisible, and that the part — 404 — of it which provided for the erection of buildings on the land by the plaintiff, and the payment therefor by the defendant at the termination of the tenancy, was an agreement in respect to an interest in or concerning land, and therefore should have been in writing-, as provided by the 4th section of the Statute of Frauds: that the contract being void in part is void as an entirety, within the principle of the cases of Charter vs. Beckett, 7 T. Rep., 201, and Thomas vs. Williams, 10 B. & Cr., 664. But to the correctness of this contention we cannot accede. If the buildings contemplated by the verbal contract, to be put up by and for the use of the plaintiff, while-tenant, and to be paid for by the defendant, at the end' of the tenancy, at their then value, be regarded as tenant’s fixtures, then it would simply be a contract -for the sale of fixtures erected by the tenant during his tenancy, which he agreed to surrender to the landlord at a valuation. And so treating it, the law is well settled, that agreements for the sale or surrender of fixtures are not within the operation of the Statute of Frauds, inasmuch as they are not goods and chattels within the meaning of the 17th section of the Statute, nor do they constitute, although annexed to the freehold, an interest in land. Hallen vs. Runder, 1 Cr., M. & R., 266, 275; Lee vs. Gaskill, 1 Q. B. Div., 709; note (r) to Greene vs. Cole, 2 Wms. Saund., 259e, 259d; Browne, St. of Fr. (3d Ed.,) secs. 233, 234, page 239. But treating the contract as one for improvements to be erected on the land of the defendant, it appears to be settled, that such improvements are not to be regarded as land, because annexed thereto, als between the contracting parties. Such a contract is properly a contract for work and labor and materials furnished; and therefore not within the provisions of the Statute of Frauds. Pinner vs. Arnold, 2 Cr., M. & R., 606. In — 405 — the case of Frear vs. Hardenburgh, 5 Johns., 272, where a verba] promise was made by the defendant to the plaintiff to pay for the erection of certain buildings upon the land of the former, while in possession of the latter, it was held by the Supreme Court of blew York, that such contract was binding, and not within the provisions of the Statute of Frauds. In that case, the Court said: “Was it ever supposed that a parol contract, to pay for work to he done on land, or for what had been done, if at the instance and request of the promisor, was a void undertaking under the Statute. The contract in such case does not go to take from the promisor the land, or any interest in, or concerning it.” The same principle was asserted in the subsequent case of Benedict vs. Beebee, 11 John., 145, and also in Scoggin vs. Stater, 22 Ala., 687. See, also, Browne, St. of Fr., sec. 233. The third prayer of defendant was intended to present a question of estoppel, whereby the plaintiff should be precluded from sotting up or relying upon the verbal contract of renting made witli Harrison. But the facts stated in the prayer are wholly insufficient to constitute an estoppel; and the Court was quite right in rejecting the prayer. But in regard to the defendant's fourth prayer, we think the Court below fell into error in rejecting it. If it be true, as set forth in this prayer, that the acts alleged as the trespass were done by the permission of the plaintiff, and under an arrangement with the plaintiff, whereby reasonable compensation was to be paid by the defendant for any injury done the plaintiff, by the opening and-working a brickyard upon the premises, by the authority of the defendant, such facts, if found to exist, would furnish a complete answer to the action. The plaintiff, if he sustained injury by what was done on the premises, by the authority of the defendant, would have to seek his remedy — 406 — on the contract, and not hy an action of trespass guare clausum fregit. It is true, there was no plea, of leave and license interposed hy the defendant, as there ought to have been, to entitle the defendant to avail itself of the defence furnished by the facts stated in this prayer. Add. on Torts, 295, 296; 2 Greenl. Ev., secs. 625, 627. But the prayer made no reference to the pleadings, nor was there any prayer on the part of the plaintiff to .preclude the right of the defendant from availing itself of the defence, as not being within the issue made by the pleadings, upon which the case was tried. And it is the settled practice in this Court, that' where the Court below either grants or rejects a prayer, asking-an instruction to the jury, that if they believe certain facts, the plaintiff is, or is not, entitled to recover, if there be no reference to the pleadings, this Court will not assume that the Court below inspected the pleadings, and adjudged their sufficiency or insufficiency to sustain the prayer. The prayer to raise such a question, under the Act of 1825, ch. 117, should be framed with a direct reference to the pleadings in the cause. Stockton vs. Frey, 4 Gill, 406, 421; Owings vs. Jones, 9 Md., 116. It appears that there was a paper, signed by counsel and.filed in the cause, (but at whát particular stage of the trial does not appear,) entitled “special exceptions;” and one of the excejations stated is that the fourth prayer of the defendant was “not proper under the pleadings in the cause.” But this paper was not made part of any bill of exception taken in the course of the trial, and signed by the Judge; nor does the 4th Rule, regulating appeals, apply to such case, or authorize the taking of any such special exception to a prayer, that “it is not proper under the pleadings in the cause.” — 407 — (Decided 23d November, 1888.) Eor the reasons stated, the judgment of the Court Below must Be reversed, and a new trial awarded. Judgment reversed, and neto tried aivarded.