Donovan v. Maloney
| Decision Date | 24 May 1912 |
| Citation | 26 Del. 453,84 A. 1032 |
| Court | Delaware Superior Court |
| Parties | WILLIAM W. DONOVAN v. CHARLES E. MALONEY |
Superior Court, New Castle County, May Term, 1912.
FOREIGN ATTACHMENT (No. 50, September Term, 1911).
Declaration in debt for rent due on an oral demise.
At the trial, Mr. Brockson, counsel for plaintiff, sought to prove the terms of an oral lease or agreement between the plaintiff and the defendant respecting the demise of the plaintiff's farm to the defendant.
Mr Handy:--I object. It already appears that this original agreement was made in October, 1909, and was for a letting of the farm from March 1, 1910, to March 1, 1911. It was therefore a contract which was not to be performed within one year from the making thereof, and action cannot be brought upon such a contract unless it is reduced to writing and signed. While a demise for one year is good in Delaware, if made orally, this alleged contract was not a demise but an agreement to make a demise in futuro; being so regarded, it is obnoxious to the Statute of Frauds, because it is a contract in regard to an interest in land. If, however, it be deemed to be a demise instead of an executory contract to enter into a demise, then it is obnoxious to the same statute because it is not to be performed in one year from the making thereof. Himesworth v. Edwards, 5 Harr. 376; Tiffany (under head of "English Statute of Frauds") and cases cited.
Brockson for plaintiff replied, contending that the evidence shows that, pursuant to the oral agreement made in October, 1909 the defendant, on March 1, 1910, took possession of plaintiff's farm as tenant thereof, to continue as such tenant for one year from the last mentioned date, under an oral lease.
The contract to make a lease was executed on March 1, 1910, when the defendant took possession of said farm as tenant. Said lease was made to continue for one year only, from March 1 1910, to March 1, 1911. The plaintiff is endeavoring to recover the balance due him under the terms of said lease. He has the right to prove the terms of the lease, notwithstanding its terms were agreed upon more than three months before said lease went into effect. Oral leases were valid at common law. Oral leases for one year are valid in Delaware.
"No demise, except it be by deed, shall be effectual for a longer term than one year." Revised Code (1893) p. 866.
"A contract of renting for a year, though respecting an interest in the land, is excepted by the act concerning landlords and tenants, and may be made by parol." Himesworth v. Edwards, 5 Harr. 376. Higgins v. Gager, 65 Ark. 604, 47 S.W. 848; Sears v. Smith, 3 Colo. 287; Sobey v. Brisbee, 20 Iowa 105; Stem v. Nysonger, 69 Iowa 512; Railsback v. Walke, 81 Ind. 409; Whiting v. Ohlert, 52 Mich. 462; Young v. Dake, 5 N.Y. 463, 55 Am. Dec. 356; Ward v. Hasbrouch, 169 N.Y. 407, 62 N.E. 434; McCroy v. Toney, 66 Miss. 233, 5 So. 392, 2 L. R. A. 847; Hayes v. Arrington, 108 Tenn. 494, 68 S.W. 44; Richards v. Redelshimer, 36 Wash. 325, 78 P. 934; Steininger v. Williams, 63 Ga. 475.
Verdict for plaintiff.
Franklin Brockson for plaintiff.
Levin Irving Handy for defendant.
OPINION
The counsel for the plaintiff explained to the court the purpose of the question asked by the witness, and the reason for the objection made by the defendant's counsel to this line of testimony was argued at some length. We have given this matter the consideration possible during the noon recess. The oral agreement made between the plaintiff and defendant the last of October, 1909, whereby the defendant by the terms of that agreement was to enter into possession, of the premises mentioned, on the first of March, 1910, for the term of one year was an executory contract to enter into a lease in futuro. Such a contract is an interest in land under the decision of the court in the case of Himesworth v. Edwards, 5 Del. 376, 5 Harr. 376, and by the provisions of section 7 of the statute of frauds is unenforceable because it is not in writing. But if on the first day of March, 1910, William W. Donovan, pursuant to the terms of this unenforceable contract, delivered possession of the premises to Charles E. Maloney and Maloney accepted the same and went into possession thereof, then the court is of the opinion that the executory contract became an executed one, and that the demise of the premises would begin on the first day of March, 1910, and by the provision of Section 2, Chapter 120, Revised Code, p. 866, would be for a term of one year and therefore need not be in writing.
We therefore overrule the objection and admit the testimony.
RICE, J., charging the jury:
Gentlemen of the jury:--In this action William W. Donovan, the plaintiff, claims that some time during the month of October, 1909, he entered into an oral agreement with Charles E. Maloney, the defendant, that on the first day of March, 1910, he, the defendant, would become a tenant of the plaintiff on the plaintiff's farm in Blackbird Hundred, this county, and the tenancy would continue from March 1, 1910, until March 1, 1911; that the defendant was to pay to the plaintiff as rent one-half of certain crops to be grown on the farm and in addition he was to furnish the plaintiff enough hay to feed one horse, for one year.
The defendant admits that he did make an agreement with the plaintiff in October, 1909, to enter into a demise of the plaintiff's farm at the time and for the length of time as claimed by the plaintiff, and pursuant to said agreement did enter into possession of the farm as tenant, and remained in possession for the term of the lease; but denies that he obligated...
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Schwartsman v. Wilmington Stores Co.
...the facts before them so held; citing Harmsworth vs. Edwards (Supra). Being a contract to make a lease in the future and not a lease, Donovan v. Maloney is not with our conclusion in this case. That this is the view of the Judge, who presided at the trial in Donovan v. Maloney, is apparent ......