Falk v. Devendorf

Eschweiler, J. The defendant contends that under undisputed testimony that at the time of the making of the oral contract in August, 1918, it was further agreed between defendant and the then owner of the premises, acting through his wife as agent, that such contract would be put in writing at any time thereafter at defendant’s request, it then became a valid and binding contract as though reduced to writing and became equally binding and enforceable as against the plaintiff, who bought the real estate chargeable with notice of such right in the defendant then in possession. He also contends that in any event his entering into possession of the premises in reliance upon the oral agreement to lease and to reduce such agreement to writing,'together with his doing the electric wiring in the premises and continuing in possession thereof and paying rent, was such part performance as takes the oral promise out of the statute of frauds. ■ ■ So much of the arrangement between the defendant and Broecker in August, 1918, as purported to give defendant the right of possession at the specified rental for the term of [13] one year is conceded by plaintiff and so treated by the courts below as being binding and effectual. So much, however, of such agreement as purports to grant defendant any right to possession after the expiration of such first year is manifestly within the statute of frauds (secs. 2302, 2304, Stats.), and was correctly so held. 20 Cyc. 214; Hand v. Osgood, 107 Mich. 55, 64 N. W. 867; Better v. Robinson, 50 Mich. 264, 15 N. W. 448; Osgood v. Shea, 86 Neb. 729, 126 N. W. 310, 42 L. R. A. n. s. 648 and note. The oral agreement for the subsequent execution of a writing which would give validity to that which without such writing is void under the statute of frauds, was likewise void. Yates v. Martin, 2 Pin. 171; 20 Cyc. 229; Hanson v. Marion, 128 Minn. 468, 151 N. W. 195. To hold otherwise would pave the way for a practical abolishment of such provision in the statute of frauds. The taking possession by the defendant in this case is properly referable to the rights he acquired and which were acquiesced in by. plaintiff under the valid lease for one year. Osgood v. Shea, supra; Brodner v. Swirsky, 86 Conn. 32, 84 Atl. 104, 42 L. R. A. n. s. 654. Neither did the fact that the defendant did some electric wiring in the premises present a situation showing a substantial improvement to the premises themselves of benefit to the then owner, or of the doing of something outside of ■ the mere agreement for leasing such as would bring it within any of the rules which warrant a court of equity in decreeing specific performance of an oral agreement void under the statute, recognized in such cases as Booher v. Slathar, 167 Wis. 196, 167 N. W. 261, and those therein cited; Harrell v. Sonnabend, 191 Mass. 310, 77 N. E. 764. The written statement by the former owner, Broecker, declaring the terms of the oral agreement in August, but which was not signed until after plaintiff had purchased from Broecker, could not, even were it of force between defend [14] ant and Broecker, be binding on plaintiff, the subsequent purchaser. Emery v. Boston T. Co. 178 Mass. 172, 59 N. E. 763. By the Court. — Judgment affirmed.