Ver Steeg v. M. Longo Fruit Co.

CAULFIELD, J. (after stating the facts). — The defendant assigns as error the action of the trial court in giving the declaration of law set forth in our statement of fact. This assignment we consider well taken. The contract sued on must he in writing under the Statute of Frauds. [Section 2783, Revised Statutes, 1909; Donovan v. Schoenhofen, 92 Mo. App. 341.] And this being an action at law upon such a contract, nothing 'short of full performance on the plaintiff’s part could take it out of the statute. [Johnson v. Reading, 36 Mo. App. 306; Nally v. Reading, 107 Mo. 350, 17 S. W. 978.] By its declaration of law the trial court assumed that such was the law, but evidently [130] decided the case on the theory that putting in the elevator and admitting defendant into possession was such full performance. If it had not adopted that theory, its judgment would not have been for the plaintiff, for clearly that is all that plaintiff did. It evidently considered the signing of the lease by the plaintiff, as lessor, to be unnecessary to the full performance of his contract for a written lease, or inadvertently overlooked the lack of that feature in the case. The plaintiff cites Donovan v. Brewing Co., 102 Mo. App. 427, 76 S. W. 715; Winters v. Cherry, 78 Mo. 344, and Bless v. Jenkins, 129 Mo. 647, 657, 31 S. W. 938, in support of his contention that “the making of the improvements agreed upon and delivering possession to the plaintiff (constitutes full performance by plaintiff.” The first case is not in point because the statement of fact therein does not disclose that the proffered lease had not been signed by the plaintiff as lessor, and the point was not made or noticed that full performance should include such signing. The last two cases deal with a parol lease as distinguished from a parol contract for a written lease such as we are dealing with. There is a very obvious difference between a parol agreement to make a written lease and a parol lease. In one case, the making of the writing is the subject of the agreement and only that can execute it; in the other, the subject is the act or fact of present leasing without any. writing being contemplated. [Grigsby v. Western Union Tel Co., 5 S. Dak. 561.] A parol, leasing might be fully performed by the making of the improvements and delivery of possession because that may be all there is for the lessor to do in order for him to perform the whole contract on his part. [Winters v. Cherry, supra.] But it is too plain to permit of discussion that an owner of land has not done all that he can to the making of a written lease of it, when he has omitted that which [131] was essential to the making of a written lease by tbe lessor, viz., tbe signature of tbe lessor. [Clemens v. Broomfield, 19 Mo.. 118; Welsh v. Ferd Heim Brewing Co., 47 Mo. App. 608.] Without signing tbe lease as lessor, tbe plaintiff did not fully perform tbe contract for a written lease and therefore did not take tbe contract out of tbe Statute of Frauds. Tbe declaration of law complained of disclosed a contrary, and therefore an erroneous, theory, and as that theory controlled tbe decision of tbe trial court, the error must lead to reversal of tbe judgment. And as it appears from tbe evidence as we read it that in fact tbe plaintiff did not sign tbe lease it would be useless to remand tbe cause. Tbe judgment is reversed. Reynolds, P. J., and Nortoni, J., concur.