Hayes v. Arrington

• Decision Date: 29 March 1902
• Citation: 68 S.W. 44,108 Tenn. 494
• Parties: HAYES v. ARRINGTON et al.
• Court: Tennessee Supreme Court

68 S.W. 44

108 Tenn. 494

HAYES v. ARRINGTON et al.

Supreme Court of Tennessee.

March 29, 1902

Appeal from circuit court, Davidson county; Jno. W. Childress Judge.

Action by one Hayes against one Arrington and others. From a judgment for defendants, plaintiff appeals. Reversed.

Jeff McCorn, for appellant.

Jno. B Cannon and Jno. A. Bell, for appellees.

SNODGRASS C.J.

The plaintiff claimed that on the 11th September, 1900, he had rented of defendants a house in the city of Nashville for the year ensuing from October 1st, under contract not in writing and, averring that defendants had breached the contract, sued for damages resulting. The defendants denied the fact of a contract, and denied its validity if made, on the ground that it was obnoxious to our statute of frauds, and specifically that it was void because it was not in writing, and was not to be performed within one year from the making thereof. The case was tried before a jury, and evidence was introduced to prove and disprove the making of any contract, and that issue of fact was therefore involved; but its determination was not permitted, because the circuit judge instructed the jury as follows: "Whether there was an agreement or contract made and entered into by and between the plaintiff, on the one hand, and the defendants, on the other, is a question of fact for you to determine from the evidence; but, without entering into that question fully, I desire to instruct you as to the effect of the statute of frauds, and its bearing on this case. If you find from the evidence that the parties to this suit undertook to enter into a contract of rent or lease, not in writing, some time during the month of August or September, 1900, and the term or period of the lease was not to begin until the 1st of October, 1900, and was to continue for a period of twelve months from October 1, 1900, and said contract was not in writing, then I instruct you that such contract was void, under the statute of frauds, and the defendant would not be liable for damages for a breach thereof, and you will in that case find for the defendants. In other words, an oral contract of rent or lease, beginning at a future day, and running for a period of twelve months from that day, cannot terminate, by its terms, within a period of twelve months from the making thereof, and is void, and no recovery can be had for a breach of such a contract." There was no question that the contract, if made at all, was made before the inception of the year of its performance; and therefore this instruction was conclusive, and the jury was not called upon to pass, and could not properly have passed, upon the question of the fact of the making of such a contract, because it was charged to be immaterial. The verdict, under the charge, was, of course, for defendants, and plaintiff appealed and assigned errors.

The question involved, though not a new one in this state, for it has been twice decided, is nevertheless one of the most interesting, and one about which there has been more conflict and confusion of judicial opinion than any other in the statute of frauds, or, rather, we should say, in the statutes of frauds; for commencing with the English statute of 29 Car. II, c. 3, entitled "An act for prevention of frauds and perjuries," there have been many acts based upon this and in most of the states of the Union it has been in whole or in part re-enacted, but generally with omissions, amendments, and alterations,--sometimes re-enacted in effect, but in different verbiage, and sometimes with changes or omissions which altered its meaning in particulars. When the words of the statute have been used, the construction put upon them by the English courts has also been adopted; and this is true generally, though not always, when equivalent words have been employed. Where this exception has prevailed, we think it will be found that the equivalent words have been misinterpreted, or confusion has resulted from application of other cases as authority which were themselves based upon statutes not identical in terms or effect. See Bouv. Law Dict. tit. "Frauds, Statute of," and authorities cited, with others hereinafter referred to. We need not quote here the English statute. It is sufficient to say of it that it contained, in substance, one provision making void all leases, not in writing, intended to exceed the term of three years "from the making thereof." It contained, also, a provision that no action should be brought whereby to charge any person "upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized." The first-stated provision governed as to leases, and made unwritten leases void, except for a term not exceeding three years "from the date of the making thereof." The second quoted had no reference to leases (already provided for in the first), but made all agreements not so provided for (though its terms were general), when not in writing, void, if not to be performed within one year from the making thereof. So it will be seen that while different terms might be covered by unwritten leases and other unwritten agreements, viz., three and one years, still, under the express words of the English law, these terms both began from the making of the contract, and not from the inception of its performance; and such, of course, was the construction of the English courts. The construction was also that the second-stated provision of that law, which was subsection 5 of section 4 of the English act, had no reference to leases provided for in our first-stated proposition, and which was contained in the first and second sections of said act. And this was not only true of that proposition because of the special separation of these provisions in entirely different sections, but is true of all later acts, when such provisions are made, once by a special enactment for a particular purpose, and again by a clause for all purposes, which, taken literally, would conflict with the other, upon the familiar rule of...