Booher v. Slathar

Eschweileb, J. Erom the rulings made by the court during the trial and his written decision after verdict it appears that he held, in disposing of this case, that the agreement upon which the defendant relied in his counterclaim, being oral, was void under sec. 2304, Stats., which provides that every contract for the leasing of real estate for more than one year shall be void unless in writing; that the forcible entry and unlawful detainer proceedings under ch. 145, Stats., are of such a nature that the court could not. properly entertain a counterclaim such as was asserted by defendant, even when the action is pending in the circuit court on appeal; and that inasmuch as additional testimony might have been produced, if an inquiry had heen made into the issues raised by such counterclaim, he would express no opinion as to whether there was a contract shown hy defendant of sufficient definiteness and certainty to warrant specific performance, if such could be considered; and that the finding hy the jury that the oral agreement of the parties was for a term of three years and not one year was supported by the evidence and is a verity herein; and lastly, that although the facts were in favor of the defendant the law was against him, and for that reason the judgment of the justice’s court must be affirmed and restitution ordered. Although the provisions of ch. 145, Stats., providing for [200] the action of forcible entry and unlawful detainer in justice’s court, were intended to furnish a speedy and summary remedy between landlord and tenant, yet it was held at an early day that upon the appeal provided for by the statute to the circuit court from a judgment in justice’s court in such action the appellant was entitled to a trial de novo even though the judgment was for less than $15, the statutory minimum in all other appeals upon which a trial de novo might be had. Vroman v. Dewey, 22 Wis. 323. This chapter was thereafter further amended so that by sec. 3310 of the revision of 1818 it provided, as it does now, that “In all cases of appeal from a judgment in an action brought under this chapter a new trial shall be had in the appellate court, and the case shall be tried in the same manner as cases originally brought there, . . .” This action, therefore, being properly in the circuit court upon appeal, it became, for the purposes of this trial, as though originally brought there. The plaintiff’s action being with reference to the right of possession to this farm, the defendant’s proposed counterclaim related to the same subject matter and was properly pleaded and could be heard and disposed of as a counterclaim on such trial de novo, and that should have been done. While the oral agreement relied upon by defendant for a term of three years was void under sec. 2304, as held by the trial court, the effect of that section is nevertheless qualified by sec. 2305, which is of equal antiquity in our statutes with sec. 2304, and that provides that the power of the court to compel specific performance of agreements in case of part performance thereof is not to be construed as abridged by the letter of such sections as 2304. If, therefore, the facts herein shall disclose a definite and certain agreement between the parties by which defendant was required to do and perform certain work towards the improving of the farm and to receive pay therefor and that he did enter into possession under such agreement and per [201] formed, to some substantial extent, wbat was required of him, and it shall further appear that the repudiation by the plaintiff of such' agreement and his assertion that the same was void under sec. 2304, supra, would work inequitably against the defendant or perpetrate a fraud upon him, it may well present a situation authorizing a court of equity to declare such an agreement, if found, as a valid one in existence at the time of the commencement of this action and be enforced so far as necessary to protect defendant’s substantial rights thereunder. That the oral agreement partakes of the nature of a lease is no obstacle to the court declaring, on proper showing, that it should be specifically enforced. Seaman v. Aschermann, 51 Wis. 678, 8 N. W. 818; Henrikson v. Henrikson, 143 Wis. 314, 127 N. W. 962; Kipp v. Laun, 146 Wis. 591, 602, 131 N. W. 418; Halligan v. Frey, 161 Iowa, 185, 141 N. W. 944, 49 L. R. A. n. s. 112, note. . That the time has gone by within which the court could place the defendant in possession again under any agreement that may be found to have been made and enforceable does not affect the right of the defendant, if otherwise entitled to such relief, to have that declared even at this late date. It manifestly would affect his rights as against the plaintiff in this case and any proceedings subsequent to and upon any judgment of unlawful detainer herein. The facts and records not being all before us, we regret that this protracted litigation cannot be disposed of finally here and now, but it must therefore be remanded and further proceedings had in the court below in accordance with what is here determined. By the Court. — The judgment of the circuit court is reversed, and the cause remanded with directions to take further proceedings in accordance.with this opinion.