Hutchinson v. Platt

• Decision Date: 14 April 1919
• Docket Number: 20642
• Citation: 81 So. 281,119 Miss. 606
• Court: Mississippi Supreme Court
• Parties: HUTCHINSON v. PLATT ET UX

81 So. 281

119 Miss. 606

HUTCHINSON v. PLATT ET UX

No. 20642

Supreme Court of Mississippi

April 14, 1919

Division B

1 FRAUDS. Statute of. Necessity of writing. Authority. Landlord's agent. Lease.

Our statute of frauds only requires an agent, in contracting for or agreeing upon leasing of lands for a term of years, to be "lawfully authorized" so to do, and his appointment is not required to be in writing. Nevertheless, a lease for a longer term than one year must be by deed, and if executed by an agent, the appointment of the agent should also be by deed, so it is that a written lease for a term of years executed by an agent acting under parol authority is invalid as a lease, but a party entering upon lands under such an instrument is in equity entitled to retain possession. Such an instrument is invalid as a lease, but binding as a contract for a lease, and if the tenant or lessee enters in possession, the contract is valid as a lease for one year and good as a contract of lease for the number of years agreed upon.

2. STATUTE OF FRAUDS. Lease for term of years by agent under parol authority. Validity. Consideration for rent.

Where a tenant accepted a written lease for five years executed by an agent of the landlord under parol authority and in reliance thereon demanded possession from the holder of the premises the lease being enforceable for one year as a lease and as a contract for a lease for the remainder of the five years. In such case the lessee was liable for rent for the first year although he did not get possession of the premises, the lease not requiring the landlord to put the tenant in possession.

3 TRIAL. Action to recover rent. Instructions as to execution and validity of lease.

While the expression that plaintiff's were "under no obligation to sign any other lease" embodied in an instruction in an action by a landlord for rent, was subject to criticism, yet where the tenant did not decline the lease because not acknowledged, but accepted it and the jury were expressly told in another instruction that if the tenant demanded that the lease be acknowledged before execution of rent notes and acceptance of the contract, or if the lease contract was never signed, verdict should be rendered for defendant, such instructions when taken together fairly presented the tenant's defense.

4 TRIAL. Action for rent. Execution of lease. Evidence. Instructions.

In this case which was an action for rent, the court held that the use of the word "completed" and the phrase "agreed upon" in the instructions upon the question of the execution of the lease, did not mislead the jury in view of other instructions given.

HON. H. H. ELMORE, Judge.

APPEAL from the circuit court of Washington county, HON. H. H. ELMORE, Judge.

Suit by A. Platt and wife against J. N. Hutchinson. From a judgment for plaintiffs, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

R. B. Campbell, for appellant.

Counsel for the appellees interpret the opinion of the supreme court, in Lobdell v. Mason, 71 Miss. 937, as holding that a lease for more than one year, made by an agent, in behalf of his principal, without authority in writing, or a power of attorney, is valid as a lease for one year, though invalid for the period of time in excess of one year.

I do not regard that opinion as so holding. The lease construed in that case, was specifically for one year, the year 1892; and its concluding clause was, to the effect, that the tenant was to build a cabin on the leased premises, and was to have the use of said land, not only for the year 1892, but also for the years 1893 and 1894, and the court said, among other things, that: "the defendant entered upon the land in controversy under assignment of the right of her husband, who himself entered into a lease of the land, valid as a lease for one year, and good as a contract of lease for three years." The court didn't say in that case, nor hold, that a lease purporting to be for five years, or three years, void for want of written authority of the agent to execute it, valid as a lease for one year.

Furthermore, the tenant in that case occupied the leased premises, and the action against him was unlawful entry and detainer, and the case was decided on equitable principles; and it is no authority for maintaining a suit at law upon a covenant contained in such invalid lease, in favor of one, who failed to give what he agreed to give.

Hutchinson, the appellant, in the instant case, was never in possession of the leased premises. In a note to American State Reports, page 752, the authorities, as to the effect of a parol lease for more than one year, are collected; and there it is said, that: "A verbal lease, which is void under the statute, because made for a longer term than is allowed by it, is nevertheless generally construed to be good and valid as a lease for a year, or from year to year if possession is taken under it."

Again, it is stated in that note that "an oral lease for more than a year under the statute is not valid, even for one year, unless the tenant has possession under it for that entire period."

In Talamo v. Spitzmiller, 120 New York Report 37, it is held that a parol agreement for a term of years is not effectual to create a tenancy for one year. The same is true where the lease is void, for want of written authority in the agent to execute it.

Counsel for the appellees suggest, in their brief, that I have not contended in mine that there is any injustice in the judgment. I have contended throughout my brief that the instructions given for the plaintiffs constituted reversible error, and that implies under Rule 11 of the supreme court rules, that those instructions resulted in a miscarriage of justice; otherwise they would not constitute reversible error.

The injustice in the judgment results from the fact that appellant has been held liable for the rent of land, which he never occupied, and from which he never received any benefit in favor of appellees, who bargined to give him a five years lease, but failed to do so, and who notwithstanding their failure in that regard, were allowed to recover rent for one year. In other words, appellees have recovered judgment against the appellant, based upon a contract, admittedly void, and which they never fulfilled, nor offered to fulfill, and the subject-matter of which was never enjoyed, in any way, by the appellant; and that, in my opinion, is gross injustice, especially as the appellant refused to execute any notes for the rent, called for by the contract, unless the appellees would give him what he bargained for.

And I respectfully submit that the court, in instructing the jury to the effect that the lease, though purporting to be for five years, and invalid as such, was nevertheless valid as a lease for one year, and that appellees were under no obligation to give any other lease than for one year, led to said unjust judgment; and that the instructions, in that regard, as well as in other particulars, pointed out in my first Brief, constitutes reversible error.

Percy & Percy, for appellee.

The first instruction given for the plaintiff is as follows "The court instructs the jury for the plaintiffs that if the lease in controversy was signed by the defendant and signed by A. Platt for himself and for his wife, and the lease completed between the parties, that this made a valid lease of 1916, and the plaintiffs were under no obligation to sign any other lease, and the plaintiffs are entitled to recover one thousand four hundred dollars, with interest from the 15th day of November, 1916, unless the jury believe from the evidence that there was a valid lease outstanding made prior to this lease by the plaintiffs to Hugh Foote." Counsel argues that this instruction was erroneous in three particulars: "First, in leaving it to the jury to determine what was a "completed" lease; second, in declaring that The lease was "a valid lease for 1916;" and, third, in declaring that "the plaintiffs were under no obligation to sign any other lease." And counsel states "the court erred in leaving it to the jury to determine what was a completed lease, or in what sense the court used that term." Taking up his objections seriatim, the word "completed" was used in the ordinary sense. If everything had been done in connection with the leasing of the property, then the lease was completed and the jury were instructed that if the lease was completed between the parties that this made a valid lease for 1916. While it is true A. Platt had no authority, other than a verbal authority, from his wife to make the lease and the lease was for a term of five years, the lease was not only valid as a lease for the year 1916, but was valid as a contract for a lease and enforceable as such for the balance of the term. Counsel states that without written authority from his wife to make the lease, the lease sued on, signed by A. Platt in behalf of his wife, was void and cites the case of Lobdell v. Mason, 71 Miss. 937. Our understanding of the holding in that case is that a lease by an agent, having only verbal authority, for a term of years is not valid as a lease for the entire term but is a valid lease for the first year of the term and is enforceable in equity as a contract for a lease. The third objection of counsel to the instruction that the plaintiffs were under no obligation to sign any other lease, there was conflicting testimony before the court, the defendant stating that the plaintiffs were to sign another lease and the plaintiffs' witnesses stating that the transaction was completed that night, and if the jury believed that the lease sued on was completed between the parties, then the plaintiffs were...