Spalding v. Conzelman

• Decision Date: 31 March 1860
• Parties: SPALDING, Appellant, v. CONZELMAN, Respondent.
• Court: Missouri Supreme Court

30 Mo. 177

SPALDING, Appellant,

v.CONZELMAN, Respondent.

Supreme Court of Missouri.

March Term, 1860.

1. If a person, already in possession of premises as tenant, verbally contract with the owner for a new term, his mere continuance in possession after the making of the alleged contract is not an act of part performance such as will justify a decree for the specific enforcement of the verbal contract.

2. In order that improvements made by a tenant continuing in possession under such circumstances may be entitled to much consideration, as bearing upon his right to a decree for a specific performance, they should be of such marked and important character as not to be naturally reconcilable with the continuance of the old relation.

Appeal from St. Louis Land Court.

A. M. & S. H. Gardner, for appellant.

I. The plaintiff was entitled to a decree. Possession was given to plaintiff; he expended money and made repairs and paid the instalments of rent. (15 Mo. 365; 2 Story's Eq. § 763.) It would be a fraud upon plaintiff if the contract is not fully executed. (20 Mo. 81.) Under the pleadings it was not incumbent on plaintiff to prove a written contract. Defendant does not set up in his answer the statute of frauds. (11 Mo. 659.)

Spies & Burt, for respondent.

EWING, Judge, delivered the opinion of the court.

This was an action for the specific performance of an alleged agreement for the lease of a house and lot in the city of St. Louis.

The petition alleges that the defendant Conzelman, on or about the 9th of August, 1856, agreed with the plaintiff to lease him for the term of seven years, at the annual rent of eight hundred dollars, the premises therein described, a memorandum of which agreement in writing, in the form of a lease, was made by the defendant, and which is set out in the petition. It is further alleged that it was agreed by the parties that the lease to be made by the defendant was to contain certain covenants not specified in the memorandum which is set out in the petition; that the defendant promised to make and deliver to plaintiff a sufficient lease in writing of the premises on the terms contained in the memorandum, and certain others not therein specified; and that relying on said agreement plaintiff took possession of the property and expended a large sum of money in repairing it in a manner suitable to his business as a dentist; that he had paid defendant eight hundred dollars, being four quarterly instalments of rent, according to the terms of said leasing; that defendant has refused to execute a lease in writing or to sign any memorandum in writing by which the plaintiff would be legally entitled to the possession.

The answer denies the allegations of the petition, and especially that there was any agreement or memorandum in writing to lease the premises; but alleges that he proposed a lease to the plaintiff, and that he refused to accept the same, and in consequence of such refusal it was never signed by himself or plaintiff; denies that the plaintiff took possession of the property in consequence of any promise of defendant, but on the contrary that at and before the said 9th of August, 1856, plaintiff had possession of the same and had occupied and used the same for his said business; denies the payment of eight hundred dollars by plaintiff, but admits that he received six hundred dollars, three quarters' rent of said house, during the time occupied by the plaintiff; states that several propositions had been made verbally between the parties respecting a lease, but none of them were ever agreed upon, nor intended as a lease or a memorandum in writing for a lease; that a lease was drawn up, but plaintiff refused to sign it, and the same was therefore never signed by defendant, and that the plaintiff was regarded as tenant at will only.

On the trial the plaintiff read in evidence the memorandum of lease or paper set out in the petition, having first proved it to be in the handwriting of the defendant. This paper bears date August 9th, 1856, and purports to lease the property for seven years, to commence at its date, at the annual rent of eight hundred dollars, payable in quarterly instalments; it is not signed by either of the parties. A witness of the plaintiff, Franklin, who was the defendant's clerk, testifies to a conversation between the parties respecting a lease of the premises in question, in which he heard the plaintiff ask the defendant if he would sign it, to which the latter replied he had no objection to having a fire clause added to it; that the paper read in evidence was the one plaintiff had, and that defendant read it over at the time. The witness further stated that the plaintiff, in May, 1856, handed him, witness, a paper for defendant to sign, and said they had better have it fixed. In a few hours the plaintiff returned, (both parties occupying different tenements of the same house,) when the defendant remarked that that was the same paper that plaintiff had handed him before; thereupon plaintiff brought another lease which the defendant said was a little better than the other. A conversation ensued, in which the defendent remarked they could not agree, and that he would not sign any lease; that he had drawn up one which the plaintiff would...