Weber v. De Cecco.

• Citation: 61 A.2d 651
• Decision Date: 14 October 1948
• Docket Number: No. 158/310.,158/310.
• Parties: WEBER et al. v. DE CECCO.
• Court: Superior Court of New Jersey

61 A.2d 651

WEBER et al.

v.DE CECCO.

No. 158/310.

Superior Court of New JerseyChancery Division.

Oct. 14, 1948.

Syllabus by the Court.

1. The insertion of phraseology extending the term of a written lease subsequent to its signing by the landlord and tenants is a sufficient compliance with the Statute of Frauds, R.S. 25:1-1, N.J.S.A., if it was accomplished with an intent to adopt the prior signatures.

2. An alteration or modification of a written lease subsequent to signing by the parties, with the intent to adopt such signatures, is tantamount to a re-execution.

Suit in equity by Alfred E. Weber and others against Dante DeCecco to restrain defendant from interfering with plaintiffs' quiet and peaceful possession of premises leased from defendant.

Decree for plaintiffs.

See, also, 56 A.2d 414, 26 N.J.Misc. 47.

Samuel P. Hagerman, of Blackwood, for plaintiffs.

Wilfred B. Wolcott, of Camden, for defendant.

HANEMAN, Judge.

This is a suit seeking to restrain the defendant-landlord from interfering with the quiet and peaceful possession of the plaintiff-tenants. The facts as alleged in the pleadings and as adduced at the time of trial demonstrate that on or about September 1, 1939 the parties hereto entered into a written lease signed by the plaintiffs and the defendant for the rental of a certain parcel of real estate situate in Runnemede, New Jersey. The term as expressed in this lease was ‘for the term of sixty months (60)’ from the first day of September, 1939.

Alfred E. Weber testified that sometime prior to September 1, 1944, that being the date of the expiration of the term provided for in said lease, he requested the defendant to renew the lease for an additional term of five years. This the defendant refused to do, unless the plaintiffs would reconstruct or repair a cesspool on said premises. The plaintiffs did thereafter undertake the reconstruction or repair of said cesspool and completed the same within the month succeeding September 1, 1944. Sometime subsequent to September 1, 1944 the defendant requested the plaintiffs to produce and deliver to him the original lease. Thereafter, and still within the month of September 1944, the defendant returned the original lease, in the body of which had been inserted the following provision: ‘renewed for sixty months (60) from the first day of September, 1944.’

The defendant, on the other hand, testified that the lease had been delivered to him at his request in connection with an oft-repeated and almost continual demand by the plaintiffs for a renewal thereof. He disputed plaintiffs' testimony that the cesspool had been completed in September, and further testified that the old lease, with the above phraseology, was not returned to the plaintiffs until January 1945. When asked the direct question as to why he had inserted the above phraseology and redelivered the lease to the plaintiffs, he stated that it was as a result of their plaguing him for a renewal; that he desired to do the right thing; and that he thought this renewed the lease. Thereafter, there ensued varied and various attempts by the defendant to re-obtain possession of the leased premises, including several actions for such possession in the Camden District Court.

On the cardinal questions there is no dispute. The lease dated 1939 was delivered to the defendant after the expiration of the term therein provided, for the purpose of obtaining a renewal. Defendant typed the words above quoted in the body of the lease, above the signatures written in 1939, with the intent of renewing the lease for a period of sixty months and then delivered the same to plaintiffs.

The very narrow and restricted question here involved is whether the lease, as offered in evidence, complies with Revised Statutes 25:1-1, N.J.S.A., which reads as follows:

‘All leases, estates, interests of freehold or term of years, or any uncertain interest of, in, to or out of any real estate heretofore or hereafter made or created by livery of seizin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, have any other or greater force or effect, any consideration for making any such parol leases, estates or interests notwithstanding.

‘This section shall not apply to leases not exceeding the term of three years from the making thereof.’

It is conceded that the alleged tenancy commencing September 1, 1944, being for a period longer than three years, must be in writing ‘and signed by the parties'. Defendant contends that the alleged lease, as offered, does not comply with such statute, in that it was not physically signed in 1944. We are, therefore, confronted with the question as to whether, under the facts, the signatures appended to the lease on September 1, 1939 can be considered the signatures to a lease, the term of which was to commence September 1, 1944.

It is to be remembered that the section above referred to is a portion of our Statute of Frauds which we obtained from the English statute entitled ‘An Act for the Prevention of Frauds and Perjuries.’ This statute was originally enacted to prevent fraud and perjury in the enforcement of obligations depending for their evidence on the memory of witnesses by requiring certain enumerated contracts and transactions to be evidenced by a writing signed by the parties. There is no requirement in the statute that the signature be in definite or particular form. It has been held that typewritten or printed names, signatures in ink or pencil, or any name or symbol used by a party with the intention of constituting it his signature, is sufficient to comply with the statutory requirements. 37 C.J.S., Frauds, Statute of, s 202; 40 Am.Jur. par. 377.

Restatement of the Law, Contracts, par. 210, reads as follows:

‘The signature to a memorandum under the Statute may be written or printed and need not be subscribed at the foot of the memorandum, but must be made or adopted with the declared or apparent intent of authenticating the memorandum as that of the signer.’

It is therefore apparent that in the first instance the lease would have been effective if it contained a name, initial or symbol affixed thereto by the parties with the intention that it should be recognized as their signatures.

In Mutual Benefit Life Insurance Company v. Brown, 30 N.J.Eq. 193, the court had before it the question of whether a conveyance of real estate complied with the Statute of Frauds where the grantor's name was not written by him but was written in his presence and by his direction. In considering this question, the court there said:

‘But the authorities hold that if the grantor's name is written by the hand of another, in his presence and by his direction, it is his act, and the signature, in point of principle, is as actually his as though he had performed the physical act of making it. Gardner v. Gardner, 5 Cush. (Mass.), 483 (52 Am.Dec. 740); Irvin v. Thompson, 4 Bibb (Ky.), 295; Ball v....