Crane v. Powell

• Decision Date: 31 October 1893
• Citation: 34 N.E. 911,139 N.Y. 379
• Parties: CRANE v. POWELL.
• Court: New York Supreme Court

139 N.Y. 379

34 N.E. 911

CRANE

v.POWELL.

Supreme Court, New York County, New York.

October, 1893.

Appeal from a judgment of the General Term of the N. Y. Common Pleas, which modified, and as modified affirmed, a judgment entered upon a verdict for plaintiff; and also affirmed an order denying defendant's motion for a new trial.

Action for breach of a contract to rent brought by Julia M. Crane against Seneca D. Powell.

At the trial a verdict was given for plaintiff.

The General Term affirmed the judgment for plaintiff, holding that the Statute of Frauds must be specially pleaded to be available [reported in 46 State Rep. 668; S. C., 19 N. Y. Supp. 220].

The further facts are fully stated in the opinion.

Henry Major ( C. Godfrey Patterson, attorney), for appellant--I. Defendant could avail himself of the Statute of Frauds under his general denial; especially as it appeared by plaintiff's own evidence that the contract was invalid under the statute (citing Milbank v. Jones, 127 N. Y. 370;Russell v. Burton, 66 Barb. 539;Oscanyan v. Arms Co., 103 U. S. 261;Cary v. Western Union Tel. Co., 20 Abb. N. C. 333; Blanck v. Littell, 9 Daly, 268; Amburger v. Marvin, 4 E. D. Smith, 393; Gibbs v. Nash, 4 Barb. 451;Ontario Bk. v. Root, 3 Paige Ch. 480;Champlin v. Parish, 11 Id. 405;Elting v. Vanderlyn, 4 Johns, 237, 239; Alger v. Johnson, 4 Supm. Ct. ( T. & C.) 632; Harris v. Knickerbacker, 5 Wend. 638;Cozine v. Graham, 2 Paige, 177;Duffy v. O'Donovan, 46 N. Y. 223, 226;Marston v. Swett, 66 Id. 206;Barrein v. Southack, 7 N. Y. Supp. 324;May v. Sloan, 101 U. S. 231, 232;Dumphy v. Ryan, 116 Id. 491, 495).

John W. Weed, for respondent.--I. The defense of the Statute of Frauds is not available to defendant because it was not pleaded (citing Porter v. Wormser, 94 N. Y. 450;Hamer v. Sidway, 124 Id. 538;Wells v. Monihan, 129 Id. 161;Oliver v. Moore, 53 Hun, 472; Ambler v. Skinner, 7 Robt. 561, 563).

O'BRIEN, J.

The plaintiff recovered damages for the breach of an agreement, which, on the trial, appeared to be oral. The complaint alleges that the plaintiff, in the month of October, 1887, was in the possession under a lease of a house in the city of New York, and that she entered into an agreement with the defendant whereby the defendant leased from her, for the term of one year from the first day of November, 1887, the two front rooms on the second floor, and the back parlor and extension room, with the use of the front parlor on the first floor, with board and attendance to be furnished during the time by the plaintiff for the defendant and his assistant or associate in business, for the sum of $3,250, payable in equal monthly payments of $270.83 in advance. The defendant was a practicing physician, and the rooms were intended, in part, at least, to serve the purpose of an office, in which the defendant was to carry on his business. The defendant, in pursuance of this agreement, entered into and took possession of the rooms, and used them for the purpose intended, and he and his associate were furnished with board and attendance until the month of June, 1888, when, without the consent of the plaintiff, he abandoned the premises, and refused to further perform the agreement on his part, though the plaintiff was at all times ready and willing to perform on her part. It was also stipulated, as a part of said agreement, that the defendant, for the purpose of his business, should have the privilege of affixing, in a suitable place on the front of the house, his business sign, and that in pursuance of that right, conferred by the agreement, he did affix, upon taking possession on the first of November, at the side of the front door, a metallic sign with his name and professional business upon it, and also words and figures indicating when he could be found by patients and callers at his rooms in the house. The judgment appealed from was recovered by the plaintiff as damages for a breach of this agreement. It appears that he paid the stipulated monthly payments only up to June 1, 1888, and the plaintiff claims that on or about July 1 thereafter, in consequence of the defendant's refusal to further perform his agreement, her home and business were broken up and she was obliged to surrender her lease, which then had about two years to run, to her landlord. The jury allowed the plaintiff for the month of June the whole of the monthly payment, but the General Term modified the damages for that month by deducting what it would actually cost the plaintiff to furnish board for two persons during that time, and for the four remaining months of the time the plaintiff recovered only the profits which she would have made had the defendant performed.

The defendant's answer admits that during the time he was engaged in business as a physician, and that the plaintiff, at the time of the alleged agreement, was the lessee of and in possession of the house, and all the other allegations of the complaint were denied, but no other defense was pleaded. At the trial it appeared that the contract sued upon was not in writing, but the defendant made no objection to oral proof to establish it, and the plaintiff was permitted, without objection, to testify to a verbal agreement to sustain the allegations of the complaint. When the plaintiff rested, however, and again at the close of the case, the defendant moved to dismiss the complaint, on the ground, among others, that as the agreement was not in writing, and as it was not to be performed within one year from the making thereof, it was void by the Statute of Frauds. The court refused to rule in accordance with this request, and the defendant excepted. The defendant, in his own behalf, testified that there was no time specified for the duration of the agreement, and there was a sharp conflict in the evidence between him and the plaintiff, who claimed that it was to last for one year. The plaintiff's version of the transaction was sustained in some degree by circumstances and by proof of admissions claimed to have been made by the defendant. That question was submitted to the jury by the learned trial judge, with proper instructions, and the verdict must be taken as a conclusive determination of the issue. But the learned judge distinctly ruled and charged the jury that the defendant was in no position to urge the invalidity of the contract under the Statute of Frauds, by reason of his omission to plead that defence, and to the ruling and the charge to the same effect there was an exception. The result in the courts below thus turned upon the omission of the defendant to plead the statute, and the first and perhaps only question presented by the appeal is one of pleading. Preliminary to that question it should be observed that contracts that by their terms are not to be performed within one year were valid at common law, though not in writing, but the statute enacted that thereafter such agreements should be void unless reduced to writing, and, therefore, a new defense was created with respect to such agreements as were within the statute. The Statute of Frauds does not prohibit the making of any agreement in any way that the parties may see fit, nor render them illegal or immoral if not made in some particular way. It simply requires that certain agreements must be proved by a writing. It introduced a new rule of evidence in certain cases without condemning as illegal any contract that was legal before. The vital fact that was in issue in this case was whether the agreement set forth in the complaint was made. The jury found that it was, and it might be a question whether this court can review that finding upon the record as it stands. The motion to dismiss the complaint presents the question whether there was any evidence of the contract and nothing else. If there was any proof to establish the agreement sued upon or tending to establish it (within the rules sanctioned by this court) then the finding is beyond the power of review and is conclusive. A material fact may sometimes be found by a jury upon other than strictly legal evidence. When proof is offered to establish it that is not of the quality or character required by law, and it is not objected to, the other party is deemed to assent to another mode of proof of an inferior or secondary nature, and when such proof is in the case, the error, if any, is not reached by a motion to dismiss the complaint. Now, the plaintiff in this case gave proof of an oral agreement which showed that the minds of the parties met, and that there was mutual assent with reference to the subject-matter, and this is ordinarily the very essence of a contract. It tended to sustain the complaint, as the defendant did not elect to insist upon the statutory form of proof, but virtually assented to the mode of proof that had always been sanctioned by the rules of the common law. Under these circumstances, it seems to me that we cannot say that the finding of the jury is without any evidence to sustain it, or that the defendant's exception to the refusal of the trial judge to dismiss the complaint is good.

In Flora v. Corbean (38 N. Y. 111), it was held that where testimony tending to establish a material fact, although incompetent in its nature, is received without objection, the party has a right to insist upon the facts shown thereby or based thereon (Sharpe v. Freeman, 45 N. Y. 802, 808;Matter of Yates, 99 Id. 94, 101).

So it was held in Howard v. Sexton (4 N. Y. 157), that a witness might be convicted of perjury in falsely swearing to a parol promise within the Statute of Frauds, although that mode of proof would have been incompetent if objected to.

Judge GARDNER, in the opinion of the court, remarked: “The evidence was material, for it proved the promise. It was not, perhaps, competent, if the objection had been taken in season. All secondary evidence becomes incompetent if objected to. But if the parties choose to rely upon it, a witness is not thereby...