Briar v. Robertson

• Decision Date: 26 October 1885
• Citation: 19 Mo.App. 66
• Parties: JOHN BRIAR, Respondent, v. THOMAS J. ROBERTSON, Appellant.
• Court: Kansas Court of Appeals

19 Mo.App. 66

JOHN BRIAR, Respondent, v. THOMAS J. ROBERTSON, Appellant.

Court of Appeals of Missouri, Kansas City.

October 26, 1885

APPEAL from Livingston Circuit Court, HON. JAMES M. DAVIS, Judge.

Reversed.

Statement of case by the court.

This suit originated before a justice of the peace. An appeal having been taken to the circuit court, the case was there tried on the following stipulations and agreed statement of facts: " In the trial of this case the following shall be taken as all the facts, and the court shall decide it upon them alone, to-wit:

That in January, A. D. 1882, defendant agreed to rent to plaintiff a tract of land in Grand River township, in Livingston county Missouri, for a term of one year, to commence March 1, 1882 and to end March 1, 1883. That said agreement was verbal and not in writing. That no possession was ever given or taken of said tract. That no money or property was ever paid on account of said agreement to rent. That the rental price agreed to be paid was eighty dollars, and plaintiff was to pay twenty dollars on March 1, 1882, and that he did not pay or tender it, or offer to pay it then, or at any other time. That there were thirty-five acres to cultivate, and a small pasture; that Robertson was to build a box house for Briar to occupy as a dwelling house on said tract, by March 1, 1882 and that he did not do it, or make any effort to do so. That in March, 1882, Briar rented another tract as tenant, and moved upon it, and raised a crop. If the verdict and finding of the court shall be for the plaintiff, the damages shall be assessed at fifty dollars. A jury is waived."

The court, for the plaintiff, declared the law to be:

" The court declares the law to be as follows: that if the court finds from the evidence, that although the contract in suit was not in writing, and for the rental of real estate, yet if the said contract was to be performed within one year from March 1, 1882, the finding will be for the plaintiff in the sum agreed upon by the parties hereto."

The defendant asked, and the court refused to declare the law to be: " That, under the statement of plaintiff, and the agreed statement of facts filed in this cause, the plaintiff cannot recover."

The court rendered judgment in favor of the plaintiff. The defendant has appealed to this court.

C. H. MANSUR, for the appellant.

I. There is but one point in this case: Is a verbal lease for one year valid, or invalid, under the statute of frauds, when made in January, but not to commence until March next following. The court below held that this was not " an agreement not to be performed within one year from the making thereof," but that it was a lease, not " for a longer time than one year," and relied for authority upon recent cases in New York, Indiana, Iowa and Colorado. In New York the statute of frauds was changed by leaving out the words " within one year from the making thereof." It is not like our statute, and all the New York cases since the year 1830, and those in Indiana and Iowa that follow the New York decisions, are not in point. The New York statutes, and changes therein made, and their effect, are quite fully reviewed in Young v. Doke (5 N.Y. 463). See also Taylor on Landlord and Tenant (6 Ed.) section 30; Browne on Statute of Frauds, sects. 272, 291.

II. The compilers of the Revised Statutes in a foot note to this section (2513), say: " The one year under this section, dates from the making of the contract, which must be fully performed within the year." Citing Sharp v. Rhiel, 55 Mo. 97; Self v. Cordell, 45 Mo. 345; Atwood v. Fox, 30 Mo. 499; Binion v. Browning, 26 Mo. 270; Foster v. McO'Bleries, 18 Mo. 88; Blanton v. Knox, 3 Mo. 342. But none of these cases arose upon a lease, or relate to an interest in land.

III. In Willi v. Dryden (52 Mo. at p. 322), it is held, " that even if there is no point of law saved for the supreme court to pass upon, still, while the court will not judge of the weight of testimony, yet when the evidence consists of written instruments, we will look into them, to see whether they were interpreted and construed according to their legal effect." In the present case there is no contest about the evidence; it is all agreed upon by stipulation in writing. It is, therefore, for the court to construe it, and to do so correctly, regardless of the instructions given or refused.

No brief on file for respondent.

HALL J.

This case involves the construction of section 2513, Revised Statutes of 1879, which, so far as relates to this case, is as follows: " No action shall be brought to charge * * * any person upon any contract for the sale of lands, tenements, or hereditaments, or an interest in or concerning them, or any lease thereof, for a longer time than one year; or upon any agreement that is not to be performed within one year from the making thereof; unless the agreement * * * shall be in writing."

The single question in the case is, is a verbal lease for one year...