Unglish v. Marvin

• Decision Date: 06 October 1891
• Citation: 28 N.E. 634,128 N.Y. 380
• Parties: UNGLISH v. MARVIN.
• Court: New York Court of Appeals Court of Appeals

128 N.Y. 380

28 N.E. 634

UNGLISH

v.MARVIN.

Court of Appeals of New York.

Oct. 6, 1891.

Appeal from supreme court, general term, fifth department.

Action by George C. Unglish against George W Marvin for breach of a contract to work land on shares. Defendant appealed to the general term from a finding and judgment for plaintiff, entered upon report of a referee, and such judgment was reversed. Plaintiff appealed. Affirmed.

John H. Chadsey, for appellant.

M. M. Waters, for respondent.

O'BRIEN, J.

The plaintiff sought, in this action, to recover damages for breach of a verbal agreement, made with the defendant, by which he agreed to occupy seven or eight acres of defendant's farm for five years from the spring of 1884, on the following terms and conditions: The defendant was to furnish for plaintiff's use and occupancy the house and garden on the premises, the lower part of the barn, pasture for a horse and cow, such straw for feed and bedding as might be needed, and the use of the horse in the busy season. Also to prepare so much of the ground as they might conclude to be desirable for the reception of plants and bushes, furnish one-half the sets of plants and bushes, pay one-half the cost of picking the small fruits and berries, and build a dry-house. The plaintiff was to furnish half the sets of plants and bushes; plant to small fruits,-various kinds of berries and currants,-some seven or eight acres of the farm to be used for this purpose; to hoe and care for the berries then on the place, cultivate and care for the plants and bushes to be set out; to pick the berries and currants when ripe, market and sell them; to dry and sell those remaining; and to divide the money received on such sales, less the cost of picking, equally between himself and the defendant. Under this agreement the plaintiff took possession of the premises March 6, 1884, and occupied them till April 22, 1886, when he was dispossessed and ejected under a warrant issued by a justice of the peace in summary proceedings under the statute, instituted by the defendant. The plaintiff, after going into possession, performed various acts under the agreement and accounted for the fruit and other products sold to the defendant. On the trial of the action before a referee the plaintiff recovered $2,153 damages on the ground that he had been deprived, by the defendant, of the use of the land for the balance of the five years, and of the fruits of the agreement. The general term has reversed this judgment, and, as the plaintiff claims, improperly. The referee found that the parol agreement under which the plaintiff went into possession was void, but that occupancy under it created a tenancy from year to year, which could only be terminated by limitation or notice; that plaintiff's term did not end till March 6, 1888; and that he was entitled to recover as damages the value of the remainder of the term. The agreement was not in writing and was not to be performed within one year, and hence it was void by the statute of frauds. But, notwithstanding this, the referee allowed the plaintiff to recover precisely the same as if the agreement had been in writing, and was in all respects valid and binding on the parties. This result was accomplished by holding that occupancy, under the agreement, created a tenancy from year to year. We do not understand that the learned counsel for the plaintiff attempts to sustain this proposition, and it is obviously unsound. The relation of landlord and tenant in any form was not created either by the agreement...