Friedhoff & Co. v. Smith

• Decision Date: 21 June 1882
• Parties: FRIEDHOFF & CO., PLAINTIFFS IN ERROR, v. MARSHALL SMITH, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

12 N.W. 820

13 Neb. 5

FRIEDHOFF & CO., PLAINTIFFS IN ERROR, v. MARSHALL SMITH, DEFENDANT IN ERROR

Supreme Court of Nebraska

June 21, 1882

ERROR to the district court for Platte county. Tried below before POST, J.

AFFIRMED.

Whitmoyer Gerrard & Post, for plaintiffs in error.

Verbal lease was absolutely void. Comp. Stat., chap. 32, secs. 3, 5. Proofs do not show tenancy from year to year. One essential ingredient in such a tenancy is the agreement to pay an annual rent. Morrill v. Mackman, 24 Mich. 286. The rent agreed upon in this case was $ 40 per month. The statement of the defendant in error that it was $ 480 per year is at most but a conclusion or computation. In all cases of doubt as to construction, the tenant is most favored by law. Taylor's Landlord and Tenant, 81. The rent being payable monthly, the tenancy was from month to month, and might be terminated on one month's notice. Id., 61. Anderson v. Prindle, 23 Wend. 616. Witt v Mayor, 6 Rob., N.Y. 447. Ellis v. Paige, 1 Pick. 43.

W. S Geer, for defendant in error.

The contract was good as a lease for a year. Morrill v. Mackman, 24 Mich. 286. People v. Rickert, 8 Cow., 226. McDowell v. Simpson, 3 Watts, 129. Koplitz v. Gustavus, 48 Wisconsin, 48.

OPINION

MAXWELL, J.

This is an action brought in the district court of Platte county by Smith against the plaintiffs in error to recover the balance due for the rent of certain premises for one year on a verbal lease. The answer is a general denial and plea of payment. A verdict was rendered in the court below in favor of Smith for the sum of $ 210, upon which judgment was rendered. The cause is brought into this court by petition in error.

It appears from the evidence that Smith rented a store-room to the plaintiffs in error for the period of two years from the first day of March, 1880, at the rent of $ 40 per month, payable monthly; that the plaintiffs entered into possession of the premises, and remained in possession until September, 1880, when during Smith's temporary absence from the state they abandoned the premises, leaving the keys with Smith's clerk in an adjoining store. Smith kept the store-room subject to the use and control of the plaintiffs in error until March 1st, 1881, and then demanded the balance of the rent, which the plaintiffs in error refused to pay.

The plaintiffs in error claim that a verbal lease for two years is absolutely void, and no action can be maintained thereon.

Section 5 of chap. 32 Comp. Stat. provides that: "Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof be in writing, and signed by the party by whom the lease or sale is to be made."

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