Pontrich v. Neimann

• Decision Date: 05 May 1925
• Citation: 208 Ky. 715,271 S.W. 1049
• Parties: PONTRICH v. NEIMANN.
• Court: Kentucky Court of Appeals

271 S.W. 1049

208 Ky. 715

PONTRICH v. NEIMANN.

Court of Appeals of Kentucky.

May 5, 1925

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Joseph Neimann against Nick E. Pontrich. Judgment for plaintiff, and defendant appeals. Reversed.

Richard Priest Dietzman and Joseph M. Huffaker, both of Louisville for appellant.

Mark Beauchamp, of Louisville, for appellee.

SAMPSON J.

This is a forcible detainer proceeding, originating in a justice's court in Jefferson county, where the tenant was found not guilty, appealed to the Jefferson circuit court where the law and facts were submitted to the court and the tenant found guilty, and appealed from the judgment there entered to this court.

On September 21, 1911, Neimann by written contract leased a storehouse at the corner of Clay and Camp streets, in Louisville, to appellant, Pontrich, for two years from that date, with the privilege of two additional years at $30 per month. Pontrich immediately entered and took possession and occupied the premises for four years. About the time the lease was to expire, appellant approached his landlord and asked for a renewal of the lease, whereupon the landlord said to him in substance:

"Yes; I'll let you have it for ten years upon the same terms, if you want it."

Appellant asked if that agreement could be written into the face of the old contract, a copy of which he then had and presented, and the landlord answered in the affirmative. Thereupon appellant, in the presence of the landlord, Neimann, added at the bottom of the old contract between the same parties, and just above the signatures of the parties, these words:

"Extended ten years from September 21, 1915."

To the writing, as thus executed, were the signatures of Joseph B. Neimann and Nick E. Pontrich, the parties thereto. For several years thereafter appellant occupied the premises and paid his rent, $30 per month, to Joseph B. Neimann, the then owner. In 1921 Neiman died, and appellee, Joseph Neimann, his son, became the owner of the property by inheritance and by purchase from joint heirs. Shortly after appellee became the owner he demanded possession, and gave notice to appellant to vacate; but, when appellant produced to appellee the writing with the ten-year extension added, he (appellee) dropped the matter and said nothing more about it until August 20, 1923, when he gave appellant this notice:

"I hereby give you notice that I will demand possession of this property and the premises and improvements on September 21, 1923, at which time your lease upon said property expires. You are therefore requested to give possession on September 21, 1923, and there will be no extension of time beyond that date."

Appellant declined to vacate, and the forcible detainer proceedings were instituted, resulting as stated above; the judge of the circuit court delivering the following opinion:

"This is an action for forcible detainer, by agreement heard by the court without the intervention of a jury. I think it is controlled by C., N. O. & T. P. Ry. Co. v. Depot Lunch Room, 190 Ky. 121, 226 S.W. 387. The facts are that the extension of ten years was written by the tenant under the direction of the landlord, but it was never signed by anybody, but was witnessed by two neighbors, who were called in for that purpose. The law is that this writing, not having been signed by the party to be charged, is void under the statute of frauds."

Appellant, Pontrich, insists that the judgment should be reversed for two reasons: (1) The parties, by acknowledgment of their signatures at the time of the addition to the writing, adopted their signatures theretofore placed to the writing, making it a valid execution under the statute of frauds; (2) the lease was one from year to year, and the tenant was entitled to six months' notice to vacate, whereas only one month's notice was given.

1. At the time the ten-year extension was written into the old lease above the signatures of the parties, they called two neighbors to witness the contract granting the extension, and these two witnesses, at the request of the parties, signed the writing opposite the signatures of the parties, as witnesses; it being stated in their presence by the contracting parties that the term of the lease was extended for ten years, and that the signatures of the lessor and lessee were already to the writing. In other words, the parties acknowledged their signatures to the writing as presented to the witnesses, and thus adopted their old signatures on the writing, instead of writing their signatures anew. The question is: Did their conduct--this act--satisfy the requirements of the statute of frauds? We think it did. It is a general rule that a party may adopt any mark, character, or name as his signature to an instrument, and, if he does so, he is bound as effectually as if he had written his full name thereto. The signature to a writing is placed there for the purpose of authenticating it, and for the purpose and with the intent of the signor becoming and being bound thereby. Such a signature, one purposely made by the party on a previous occasion, may be adopted for a new writing then made, with the same effect as if made anew. This is a sufficient compliance with the requirements of the statute of frauds. 1 Cyc. 540; 27 C.J. 287, 288; 25 R. C. L. 666; Browne on Statute of Frauds, 361.

A case very much like the one before us is Vidvard v. Cushman, 35 Hun (N. Y.) 18, presented in section 181 of the topic "Contract" in the Century Digest, where it was held:

"It is urged that the new lease is not binding, because it was not re-signed by the lessors and redelivered. The added stipulation was written in the lease by one of the lessors, in the presence and with the assent of the lessee. The signatures of the contracting parties were then upon the lease. This was a good execution of the new or modified lease. Bluck v. Gompertz, 7 Exch. 862; Woolley v. Constant, 4 Johns, 54; Knapp v. Maltby, 13 Wend. 587; French v. Patton, 9 East, 350; Leake's Law of Contracts, 814, 815. The

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