Gault v. Carpenter

• Citation: 187 Ky. 25,218 S.W. 254
• Parties: GAULT v. CARPENTER.
• Decision Date: 10 February 1920
• Court: Court of Appeals of Kentucky

218 S.W. 254

187 Ky. 25

GAULT v. CARPENTER.

Court of Appeals of Kentucky.

February 10, 1920

Appeal from Circuit Court, Mason County.

Proceedings in forcible detainer by Lillian Gault against F. P Carpenter. From judgment for defendant, plaintiff appeals. Reversed, and cause remanded for new trial.

J. M Collins and Frank P. O'Donnell, both of Maysville, for appellant.

A. D Cole, of Maysville, and W. A. Bryon, of Brooksville, for appellee.

SETTLE J.

The proceedings resulting in this appeal began with a writ of forcible detainer issued, at appellant's instance against appellee, March 11, 1919, by the Mason county court, to compel the surrender to the former by the latter of the possession of a farm in Mason county owned by her, his alleged illegal detention of which was charged in the warrant. The inquisition in the county court resulted in a verdict and judgment finding the appellee not guilty of the forcible detainer charged. Thereupon appellant filed a traverse in the Mason circuit court, the trial of which resulted in a like verdict and judgment; from which she prosecutes this appeal.

It appears from the bill of evidence found in the record that appellee under a parol lease from the appellant occupied and cultivated the farm in question for a year beginning March 1, 1918, and ending March 1, 1919. The matter in controversy between them here is as to his alleged right to continue in possession of and cultivate the farm for another and second year, which began March 1, 1919, and will end March 1, 1920; it being appellee's contention that he acquired such right by virtue of a parol contract to that effect made by him with appellant in the summer or fall of 1918. On the other hand, it is the contention of appellant that no such contract was made; and that if the making thereof as claimed by appellee could be said to have been established by the evidence, as it provided for the leasing of the farm for a term exceeding one year and was not in writing, it was within the statute of frauds and by reason thereof unenforceable.

It is by no means clear from the appellee's own testimony that the alleged verbal contract by which he claims to have leased the farm of appellant for the year beginning March 1, 1919, and ending March 1, 1920, was ever completed. It is true that, when asked by his counsel whether such a contract had been made, he gave an affirmative answer. The answer, however, was but a conclusion elicited by a leading, and consequently improper, question; but our analysis of his testimony as a whole inclines us to the belief that while he was endeavoring through negotiations, which began in July and ended in September, 1918, to lease the farm of appellant for another year, such negotiations went little, if any, further than to show what crops appellant desired produced on the farm, if rented the succeeding year, and what fields should be cultivated.

Appellee's testimony is likewise so indefinite regarding the terms of the alleged contract as to render it well-nigh impossible for us to tell what they were. We do not understand that appellee claims its terms were the same as those of the contract under which he leased the farm the previous year, and the terms of that contract, except that the lease expired March 1, 1919, are not disclosed by his testimony nor elsewhere in the record.

Appellee's testimony is positive and clear, however, in two particulars: First, it fixed the date of the alleged contract under which he claims a second year's renting of appellant's farm as September 1, 1918, or within a week thereafter; second, that the term of the lease was to begin March 1, 1919, and end March 1, 1920. So, with these facts admitted by appellee, we can, notwithstanding our doubt of the sufficiency of the evidence to establish the alleged contract relied on by him, for the purposes of the decision the law compels of us in this case, concede that the contract in question was made between appellant and appellee as claimed by the latter. However, in fairness to the appellant it should be said that her testimony specifically contradicts that of appellee on all material issues of fact raised on the trial of the traverse in the circuit court.

If the appellee early in September, 1918, verbally contracted with appellant as claimed to lease from the latter her farm, for a term commencing March 1, 1919, and ending March 1, 1920, the contract was and is unenforceable, because not in writing as required by Kentucky Statutes, § 470, subsecs. 6, 7, known as the Statute of Frauds, which provides:

"No action shall be brought to charge any person * * * (6) upon any contract for the sale of real estate, or any lease thereof for longer term than one year; nor, (7) upon any agreement which is not to be performed within one year from the making thereof, unless the promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof be in writing, and signed by the party to be charged therewith, or by his authorized agent. * * *"

In Greenwood v. Strother, 91 Ky. 482, 16 S.W. 138, 13 Ky Law Rep. 33, a verbal contract, substantially the same in terms as that here involved, was sought to be enforced. But in that case it was held that a contract for the lease of real estate for the term of one year from a future date is a contract not to be performed within one year, and is therefore within the statute of frauds, and not binding, unless in writing, signed by the party to be charged. It was there contended by the appellant, as it is here contended by the appellee, that inasmuch as the expression "from the time of making thereof" is missing from the end of the sixth clause, supra, the statute was intended to prohibit an action on a verbal contract to lease land, the period of which was not longer than one year from the commencement of the term, and not from the time of making the contract of lease; that...