Deeds v. Stephens

• Decision Date: 11 June 1902
• Citation: 69 P. 534,8 Idaho 514
• Parties: DEEDS v. STEPHENS
• Court: Idaho Supreme Court

69 P. 534

8 Idaho 514

DEEDS v. STEPHENS

Supreme Court of Idaho

June 11, 1902

AGREEMENT-LEASE-SPECIFIC PERFORMANCE.-An oral agreement to lease real estate for a term exceeding one year may be enforced where the evidence shows part performance.

SAME-STATUTE OF FRAUDS-COURT OF EQUITY.-Where the evidence discloses part performance by all the parties to the agreement, it removes the bar of the statute of frauds, and may be enforced in a court of equity.

DAMAGES.-In a suit for specific performance of an oral agreement, any damages properly pleaded and proved should be assessed by the court if warranted.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Reversed and remanded, with costs to appellant.

I. N Smith, for Appellant.

Facts are fully stated in the opinion. A court of equity, having acquired jurisdiction for one purpose, will retain it for all. Especially is this true in states under the reformed procedure. Hence, in suits for specific performance it is perfectly proper for a court of equity to grant legal and equitable reliefs, either alone or ancillary to one another. The court therefore erred in refusing to admeasure damages. (Pomeroy's Equity Jurisprudence, sec. 242; Pomeroy's Specific Performance of Contracts, secs. 262, 474-480; Pomeroy's Remedies and Remedial Rights, secs. 78-82; Pomeroy's Rights and Remedies, secs. 91-97; Cathcart v. Robinson, 5 Pet. 264, 8 L. ed. 120, per Marshall, C J.) The statute of frauds will not be permitted to be an instrument of fraud. If, therefore, it would be unconscionable to entertain it, it will be disregarded; if also, its enforcement would result in irremediable damage or injury, either to estate or right, its enforcement will be refused. (Barton v. Dunlap, ante, p. 82; Idaho Rev. Stats., secs. 3225, 6008; Story's Equity, secs. 747, 759, 761, 763, 768; codified in Idaho Rev. Stats., sec. 3225; Pomeroy's Equity Jurisprudence, secs. 431-858, especially 921-1293.) In cases relating to real estate oral contracts, where part performance has been made, it would be a palpable fraud to permit the statute of frauds to be interposed as a defense; the nature of the case at once shows that no adequate compensatory damages are recoverable; and, also, that unless equity interfere, the sufferer would be remediless. (Pomeroy's Equity Jurisprudence, secs. 378 et seq., 1409; Pomeroy's Specific Performance of Contracts, sec. 132; Bouvier's Law Dictionary, title "License"; Feeney v. Chester, 7 Idaho 324, 63 P. 192; Stowell v. Tucker, 7 Idaho 312, 62 P. 1033; Francis v. Greene, 7 Idaho 668, 65 P. 362; Baldock v. Atwood, 21 Or. 73, 26 P. 1058; Lee v. McLeod, 12 Nev. 280; Flickinger v. Shaw, 87 Cal. 126, 22 Am. St. Rep. 234, 25 P. 268; Grimshaw v. Belcher, 88 Cal. 217, 22 Am. St. Rep. 298, 26 P. 84; Bowman v. Ayers, 2 Idaho 465, 21 P. 405; Taylor on Landlord and Tenant, sec. 31.) "Equity regards that as done which ought to be done." (Story's Equity, sec. 64 G; Pomeroy's Equity Jurisprudence, secs. 368, 369.)

McFarland & McFarland, for Respondent.

The mere violation of a promise is not fraud, unless the promise itself was originally made with a fraudulent intent. (Crabill v. Marsh, 38 Ohio St. 331; Montacute v. Maxwell, 1 P. Wms. 618; Batturs v. Sellers, 6 Har. & J. 249; Lambert v. Watson, 6 Har. & J. 252; Wilson v. Watts, 9 Md. 436; Glass v. Hurlbert, 102 Mass. 24, 39, 3 Am. Rep. 418; Purcell v. Miner, 4 Wall. 513; Green v. Groves, 109 Ind. 519.) "A contract must be actually concluded, for otherwise there are no rights upon which the equitable remedy can operate. Whenever, therefore, the transaction has not passed beyond the condition of negotiation or treaty, there can be no specific performance. And if it is left doubtful from all the evidence in the case whether a contract was concluded or not, equity will not grant its specific relief." (Pomeroy's Specific Performance of Contracts, sec. 58, p. 158, secs. 303, 304; Fry on Specific performance of Contracts, sec. 491; Agard v. Valencia, 39 Cal. 301.) A party claiming specific performance of a verbal contract must make out by clear proof the agreement alleged. (Blumm v. Robinson, 24 Cal. 128; Forrester v. Flores, 64 Cal. 26, 28 P. 107.) When the court cannot perform a part of the contract it will not perform any part. (Fry on Specific Performance of Contracts, sec. 802.) Nothing can be regarded as part performance to take the contract out of the statute of frauds which does not place the party in a situation which is a fraud upon him unless the contract is executed. (Arguella v. Edinger, 10 Cal. 150; Weber v. Marshall, 19 Cal. 447; Crabill v. Marsh, supra; Wilson v. Watts, supra; Purcell v. Miner, supra; Wheeler v. Reynolds, 66 N.Y. 232.)

STOCKSLAGER, J. Quarles, C. J., and Sullivan, J., concur.

OPINION

STOCKSLAGER, J.

This case is here on appeal from a judgment of the district court of Nez Perces county. The amended complaint alleges that plaintiff is the owner in fee of lots 11 and 12, block 29, of the city of Lewiston, together with buildings and improvements, known as the "Isaman Building"; that about the first day of September, 1900, there was upon said premises a three-story brick building, and that on or about that date S. G. Isaman, plaintiff's grantor, who was then the owner of said building, leased and let all of the second and third floors of said building, leased and let all of the second and third floors of said building and that portion of the cellar containing the heating apparatus to one Woodward until the first day of January, 1902; afterward said Woodward subleased and sublet said second and third floors and that portion of the cellar containing the heating apparatus to the defendant herein, and the defendant now occupies the same and resides therein; that since plaintiff has been the owner of said premises, during the year 1901, she has built and constructed an addition or annex to the rear of said building, consisting of three floors, with the knowledge and consent of said Woodward and defendant, that plaintiff erected and constructed said addition or annex for the purpose of renting and leasing the same for hotel purposes, and had negotiated and is now negotiating with a tenant to rent and lease the same; that defendant has no right, title, claim, or demand in or to any portion or part of said addition or annex, or the possession thereof, and has never had any right, title, claim, or demand to the same, or the possession thereof; and that plaintiff has ever since the construction thereof been in possession, and entitled to the possession, of the same, and every part thereof, and still is in possession and entitled to the possession of the same. Then follows an allegation that defendant threatens to move her goods, furniture, etc., into said addition, and will use, occupy and hold the same, exclude plaintiff, her agents, etc., and will not permit plaintiff to lease any part thereof; that defendant has proceeded and is proceeding to carry out her threats; that on the sixteenth day of July, 1901, she refused to permit plaintiff's attorneys and agents to enter said addition or annex, and on said day wrongfully and unlawfully broke through and into the same, and broke down partitions, broke open doors leading to the same, moved goods and furniture therein, and has proceeded to tack down carpets and drive nails and tacks into the floors and walls of said addition, and otherwise injured the addition, etc., and committed waste therein and upon; that, unless restrained by order of the court, defendant will prevent any tenant of plaintiff from occupying the premises, and will herself move her household goods therein, and occupy and withhold same from plaintiff, and will compel plaintiff to institute an action for the possession, and will continue to break down doors and nail down carpets, and will prevent plaintiff from renting the same, deprive plaintiff of the rents, and thereby cause plaintiff great and irreparable damages, injury, and loss; that, as long as defendant continues her said acts and threats, plaintiff will be unable to place a tenant in possession of said annex, etc.; that defendant is insolvent, and cannot respond in damages in any sum plaintiff may recover; that such damages are such as are impossible to calculate. Then follows prayer for judgment; that defendant be enjoined from entering in or upon said annex, and be restrained from in any manner interfering with the plaintiff's right to the possession and occupancy thereof, etc. The answer admits the allegation of ownership of the property in dispute in the plaintiff; admits that improvements have been made on the premises, but denies that they have ever been completed; denies that Woodward sublet or subleased the premises to defendant, but avers that he assigned the lease to defendant, and that she now occupies the premises, etc. Each and all of the other allegations of the complaint are denied. Affirmatively, the defendant alleges that heretofore S. G. Isaman was the owner of the premises described, and the improvements thereon; that while he was such owner, and on October 1, 1900, he leased to one Woodward the second and third floors, part of the cellarway, and the heating apparatus therefor; thereafter said Woodward, with the knowledge and consent of said Isaman, assigned said lease to defendant, who took possession, and since said time has been, and now is, entitled to the possession thereof; that, after defendant entered into the quiet and peaceable possession of said premises, said Isaman transferred the premises to the plaintiff, who is a sister of Isaman; that, after defendant took possession of said premises, she carried on the business of running a lodging-house, for which the premises and buildings thereof were designed,...