Shaw v. George

• Decision Date: 28 March 1966
• Docket Number: No. 10250,10250
• Citation: 141 N.W.2d 405,82 S.D. 62
• Parties: William E. SHAW, Plaintiff and Respondent, v. Henry GEORGE and Kelly George, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 405

141 N.W.2d 405

82 S.D. 62

William E. SHAW, Plaintiff and Respondent, v. Henry GEORGE and Kelly George, Defendants and Appellants.

No. 10250.

Supreme Court of South Dakota.

March 28, 1966.

Donley & Murphy, Elk Point, for defendants and appellants.

Christensen & Christensen, Elk Point, for plaintiff and respondent.

ROBERTS, Judge.

This is an action in forcible entry and detainer certified by a justice of the peace to the circuit court. Trial was had to a jury which returned a verdict in favor of the defendants. The trial court granted motion of the plaintiff for judgment notwithstanding the verdict. From this judgment defendants have appealed.

The complaint alleges that by virtue of a contract for deed dated October 30, 1964, plaintiff is entitled to possession of the premises in question; that defendant Henry George became a lessee under a written lease with the former owner for a two-year term terminating March 1, 1965; and that the statutory notice to quit was duly served on defendants and that they are holding over and continuing in possession after termination of the written lease.

The answer denies generally the allegations of the complaint and affirmatively alleges right of possession of the premises under a valid and existing lease with the plaintiff. The right of possession was claimed under a verbal lease negotiated with the plaintiff in the fall of 1964. The decisive question is whether the evidence was sufficient to sustain the verdict.

The undisputed evidence shows that before his purchase of the premises plaintiff had a conversation with the defendants. They indicated a desire to enter into a lease if the plaintiff bought the farm. A few days later, October 22, 1964, plaintiff wrote defendant Henry George as follows: 'I will be in Elk Point Saturday afternoon, October 24, to discuss how we shall farm the Bogard place next year and any agreement we plan to make.' Defendant Henry George testified on direct examination: 'We have been renting the land since 1945. There's 175 acres in the farm. * * * Mr. Shaw came down on or about October 24. We discussed how we would farm the place, and what arrangements would be made on fertilizer, and what crop share we would give and that he would have a written lease drawn. I was asking for a five-year lease, and Bill said no, that he would rather have a two-year lease, and we discussed it some, and I finally told him that was all right, that we could go along on two years for a while, and then we'll go to five years after that.'

The witness testified on cross-examination: 'My son Kelly has been doing the farming and giving me fifty percent of the crop profits. * * * Q. Then Shaw said 'Well, two years', is that correct? A. Yes. Q. And then you said, 'Well, all right,' and then you let it go at that, is that right? A. We settled on two years. Q. So that the lease that you're claiming you're holding the property under now is for two years. A. That's what we agreed on.'

Defendant Kelly George testified: 'Q. Was there any dispute between yourselves and Mr. Shaw over terms? A. Well, not to any great extent, I don't believe. The only thing at first that came up was the length of the lease we could get. We wanted a long term to start with * * * but he didn't want a long term, so we agreed on two years--we would start out on a short-term lease until we got to know each other better, and then we would probably get a longer lease for the farm.'

On November 2, 1964, plaintiff again wrote Henry George as follows: 'The reason for a short lease is to have a chance to know each other before making long commitments. This is something like a partnership and I know we will cooperate. After Mr. Gary Christiansen has checked the abstract we will draw up a lease. I will let you know in a couple of weeks.' A third letter, November 24, 1964, was written to Henry George wherein plaintiff wrote as follows: 'I have decided to sell the contract which I recently bought on the Bogaard farm. E. E. Rozell will handle the farm. Therefore, I cannot say what your future might be in regard to renting the property March 1, 1965.'

January 30, 1965, plaintiff caused a notice of termination of tenancy and to quit to be served on the defendants.

SDC 38.0402 invalidates in terms an 'agreement for the leasing of real property or an interest therein' for a term longer than one year if not in writing. The expression 'an agreement for the leasing' means an agreement to enter into a lease and there is a distinction between a present lease which creates an interest in real property and a mere agreement for a lease. Tiffany on Real Property (3rd Ed.) § 80. The real property provision of the statute of frauds, SDC 10.0605(3), provides that a lease of real property for a period longer than one year shall not be enforceable unless the same or some memorandum thereof is in writing and subscribed by the party to be charged or his agent authorized by him in writing to enter into such contract.

Whether a particular transaction constitutes a lease or a mere contract for a lease is a question of intention of the parties. If parties intend that an agreement be one of leasing, it so operates notwithstanding a written formal lease is to be later executed. Grigsby v. Western Union Tel. Co., 5 S.D. 561, 59 N.W. 734. On the...