Forman v. Smith
| Decision Date | 09 November 1926 |
| Docket Number | 5592. |
| Citation | 135 S.E. 653,102 W.Va. 539 |
| Parties | FORMAN et al. v. SMITH. |
| Court | West Virginia Supreme Court |
Submitted October 19, 1926.
Rehearing Denied with Modification Dec. 6, 1926.
Syllabus by the Court.
The statute of frauds need not be specially pleaded, unless the party relying thereon admits making the contract; but, in order to avail himself of its benefits, he must in some manner distinctly bring the statute to the attention of the court, otherwise it will be considered as waived.
Error to Circuit Court, McDowell County.
Action by Abe Forman and others against John Smith, begun in a justice court. From a judgment for plaintiff, defendant appealed to a circuit court. Judgment for defendant, and plaintiffs bring error. Reversed, and judgment entered for plaintiffs.
J. N Harman, Jr., of Welch, for plaintiffs in error.
Joseph M. Crockett and Charles A. Tutwiler, both of Welch, for defendant in error.
LITZ P.
The plaintiffs recovered judgment against the defendant, before a justice of the peace, in the sum of $150 for the rental of a business room, owned by the plaintiffs in the town of Kimball, McDowell county, during the months of January and February, 1925. Upon an appeal from the justice, the circuit court sustained a demurrer to the evidence interposed by the defendant, and entered judgment accordingly after a conditional verdict for $150 had been returned in favor of the plaintiffs. The plaintiffs prosecute error.
By contract in writing dated February 5, 1923, the plaintiffs leased to one George Walters the premises in question for a term of three years. About three months after the beginning of the lease the defendant became an equal partner with Walters in the business for which the premises were then being used. This partnership continued until October, 1923 at which time the defendant (according to his admission) purchased the interest of Walters in the business and lease. Thereafter the defendant occupied the premises, paying the rent according to the terms of the lease, until January 4, 1925, when, without notice to the plaintiffs, he abandoned the premises and refused longer to pay the rent.
Counsel for the defendant would sustain the ruling of the circuit court upon the theory that the parol assignment of a lease which will not expire for more than one year thereafter creates a tenancy at will, rendering the assignee liable to the landlord only for rent accruing while the former occupies the premises.
The rule, often stated as being supported by the weight of authority, is that the possession of leased premises under an oral assignment and payment of rent to the lessor constitutes such performance as will take the contract out of the statute of frauds and render the assignee liable to the lessor for rent to the same extent as if the assignment had been in writing. 16 R. C. L. 853, § 355; 25 R. C. L. 706; Tyler Commercial College v. Stapleton, 33 Okl. 305, 125 P 443, 42 L. R. A. (N. S.) 162, Ann. Cas. 1916E, 837; 52 L. R. A. (N. S.) 985; Carter v. Hammett, 12 Barb....
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