Nally v. Reading

• Decision Date: 07 December 1891
• Citation: 107 Mo. 350,17 S.W. 978
• Parties: NALLY v. READING.
• Court: Missouri Supreme Court

17 S.W. 978

107 Mo. 350

NALLY v. READING.

Supreme Court of Missouri, Division No. 1.

December 7, 1891.

VERBAL LEASE — STATUTE OF FRAUDS — PART PERFORMANCE.

Plaintiff, one of several lesees of land for ten years, made an oral contract to transfer to defendant, an outsider, his interest in the lease for the remaining four years of the term, defendant agreeing to stand in plaintiff's stead and pay his share of the rent. Defendant occupied and paid the rent for the year, and abandoned his portion of the land. Held, in an action to recover the rent for the remainder of the term which plaintiff was compelled to pay, that the contract was invalid under the statute of frauds, and the equitable doctrine of part performance was inapplicable, the action being at law. 36 Mo. App. 306, affirmed.

Case certified from St. Louis court of appeals.

Action by Charles W. D. Nally, as administrator, etc., of James W. Johnson, deceased, to recover on a contract of assignment of an interest in a lease. Defendant appealed to the St. Louis court of appeals from a judgment for plaintiff, rendered in the circuit court of Pike county, where the judgment was reversed, and the cause certified to this court. Affirmed.

Robinson & Farrell, for appellant. Reynolds & Lewis, for respondent.

SHERWOOD, J.

This cause has been transferred to this court from the St. Louis court of appeals under the constitutional provision. The only point presented — the turning point in the case — for consideration is whether such a contract as the pleadings and evidence present is capable of being sold, transferred, or assigned by parol; that is, whether one of five parties, lessees of a large tract of land for the term of ten years, can make a valid verbal contract with an outsider, whereby the interest of such party in the lease can be transferred to such outsider for four years, — the residue of the term, — the latter agreeing to stand in the stead of the one party to the lease, and to pay the same amount he would have had to do to his lessor, to-wit, $100 per year. Under such a contract, and as contemplated therein, the defendant received and took possession from the party from whom he purchased of a portion of the land, pastured his cattle there for one season, and paid to the original lessor the agreed sum for the year of his occupancy; but, having done so, abandoned that occupancy, and refused longer to occupy the premises, or to pay the residue of the sum agreed upon. On being sued for the residue of such money by the plaintiff, who had to pay such residue of the rent money himself, the defendant, after pleading several matters of defense, interposed as a further defense that the contract was not in writing, and pleaded the provisions of chapter 35, Rev. St. 1879, in...