Johnson v. Albertson
| Decision Date | 21 November 1892 |
| Citation | 51 Minn. 333 |
| Parties | CHARLES F. JOHNSON <I>vs.</I> WILLIAM S. ALBERTSON. |
| Court | Minnesota Supreme Court |
Appeal by defendant, William S. Albertson, from a judgment of the Municipal Court of the City of Duluth, Powell, J., rendered May 27, 1892.
Charles F. Johnson made complaint May 17, 1892, in the Municipal Court of the City of Duluth that Albertson wrongfully detained from him the possession of the ground floor and basement of No. 323 West Superior street, Duluth; that Albertson was his tenant from month to month at a rent of $150 a month in advance; that he had duly given Albertson a month's notice to quit, and he asked judgment of restitution. A summons was issued and Albertson was served. He appeared and answered that he was tenant from year to year. After the evidence was all given, the court instructed the jury to return a verdict for the plaintiff. They did so on May 26, 1892, and defendant asked a stay of all proceedings for twenty days to enable him to make a case and appeal. The court refused the request.
Hollembaek, Snapp & Bloomfield, for appellant.
Draper, Davis & Hollister, for respondent.
If there was any agreement whatsoever made between these parties in reference to a leasing of plaintiff's building, it must have been made in the month of February, 1889, when plaintiff stated that he would erect a building for defendant's use, and the latter replied that he would take it, when erected, at a stipulated rental. The contention of defendant's counsel that the contract was actually made or concluded on September 15th is untenable, because at that time nothing transpired save plaintiff's verbal notice that rent would have to be paid from that day, and defendant's payment, for which a receipt was given, rent "for one month, ending Oct. 15th, 1889." The bargain, whatever it may have been, was made in the month of February, as before stated; and, giving to defendant the benefit of all doubt as to the import and effect of the conversation held with plaintiff at that time, it amounted to nothing more than an agreement for the use and occupation of plaintiff's building for at least one year from a future day, — when it should be erected, and ready for occupancy. In September following, defendant moved into the building, paying his rent monthly in advance, and remained for more than two years. After one month's notice to vacate, plaintiff landlord commenced this action under the provisions of 1878 G. S. ch. 84.
On the facts this case is much like that of Jellett v. Rhode, 43 Minn. 166, (45 N. W. Rep. 13,) the difference being that the tenant, Rhode, against whom that action was brought to recover rent for the month of October, had occupied the premises less than two months, moving out September 28th. It was there held that a parol lease of real property for the term of one year, to commence in futuro, was invalid under the terms of our statute of frauds, and the landlord could not be allowed to recover. The effect of the actual entry and occupation of the premises, with payment of rent in two monthly installments, was not discussed in the opinion, although argued by counsel for the plaintiff; the authorities cited being, in most instances, those now referred to by this appellant, and from the New York courts. It is evident that this case must be controlled by the conclusion reached in the Jellett Case, unless the entry, occupation, and payment of rent in monthly installments for about two and a half years rendered the tenancy a tenancy from year to year. As was said in the recent case of Talamo v. Spitzmiller, 120 N. Y. 37, (23 N. E. Rep. 980,) there appears to have been some confusion in the cases in that state upon this subject. But it now seems to be settled that an entry under a void lease for years, or under a void lease for one or more years, to commence in futuro,...
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