Adcock v. Lieber

• Decision Date: 02 October 1911
• Parties: ADCOCK v. LIEBER.
• Court: Colorado Supreme Court

117 P. 993

51 Colo. 373

ADCOCK v. LIEBER.

Supreme Court of Colorado

October 2, 1911

Error to Lincoln County Court; Clarence M. Miles, Judge.

Unlawful detainer by John Lieber against John F. Adcock. Judgment for plaintiff, and defendant brings error. Reversed.

A. E Bowe, for plaintiff in error.

Charles L. Dickerson and W. H. Abbott, for defendant in error.

MUSSER J.

Lieber the plaintiff below, began an action of unlawful detainer before a justice of the peace, to recover possession of premises upon which was the Hugo Hotel and a frame dwelling house. In substance, the complaint alleged that the plaintiff was the owner of the premises; that he had verbally leased the same to the defendant, Adcock, from month to month for $35 a month, payable in advance; that the defendant went into possession on July 2, 1907; that the plaintiff had terminated the tenancy by a proper notice and demanded possession, which was refused. The defendant, in his answer after certain denials and admissions, alleged that, about the month of February, 1907, the defendant and his family were residing upon and conducting a ranch near Hugo, and about that time plaintiff came to the defendant and told the latter that the plaintiff desired to have a hotel conducted on the premises, and that if the defendant would leave the ranch move to Hugo, and furnish the hotel the plaintiff would build one on the premises, and would lease the premises to the defendant, by a proper and sufficient lease, for three years from the time the hotel building was completed at $35 per month; that the defendant accepted the offer and moved to Hugo; that the plaintiff built the hotel building, and the defendant, at a cost of about $500, furnished the hotel and took possession thereof on the 2d day of July under the agreement, and from that time paid the plaintiff $35 a month as rent, but the plaintiff, although requested so to do, had failed and refused to make and execute a lease of the premises.

At the trial, on appeal to the county court, the defendant offered to prove the allegations of his answer, but was not allowed to do so. The court took the position that, because the alleged contract for a three-year lease was not in writing, it was void under the statute of frauds. The court directed a verdict for plaintiff, and upon this verdict judgment was entered against the defendant.

Section 2662 of chapter 54, Revised Statutes 1908, provides that any contract for the leasing of any lands for a longer period than one year shall be void, unless the contract or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the lease is to be made. Section 2664 provides that nothing in the chapter shall be construed to abridge the powers of courts of equity to compel a specific performance of agreements in case of part performance. The contract alleged by the defendant was void under section 2662, because not in writing, unless there was such part performance as would take it out of the statute. What was done under this alleged contract which the defendant was not permitted to prove because not in writing? The plaintiff erected the hotel building and gave the possession of it to the defendant; the latter left his ranch, moved to the premises, furnished the hotel, and paid the rent for at least four months to the time that the action for unlawful detainer was begun. Plaintiff had done all he had contracted to do, except to execute the lease. Defendant, at great expense and the sacrifice of his ranch business, had...