Whiting v. Ohlert
Malcolm J. Whiting v. Peter Ohlert
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Summary
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Opinion of the Court
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Campbell, J.
This was an action by a tenant against his landlord for disturbance in his enjoyment. The main dispute was concerning the validity of the lease. The testimony tended to show an agreement by parol in April for a year’s tenancy from the beginning of May. The court below held that an agreement by parol for a full term of a jear, to begin in the future, was void under the Statute of Frauds. That statute provides that all contracts for the leasing for more than one year of lands shall be void unless in writing. Comp; L. § 4694. [How. St. § 6181.] ' The only other provision supposed to be involved is that which declares that every agreement which by its terms is not to be performed within one year must be in writing. Comp. L. § 4698. [How. St. § 6185.]
The distinction between an agreement for a lease and the lease itself was pointed out in Tillman v. Fuller 13 Mich. 113 . It is very well settled that a lease may be made to take effect in fixture, and that the estate does not begin with the contract, bxxt with the future pei’iod. Young v. Dake 5 N. Y. 463 ; Trull v. Granger 8 N. Y. 115 ; Wood v. Hubbell 10 N. Y. 479 . It is held in New York, under a statute corresponding to ours, that an agreement by parol for a future term not exceeding one year is valid, and not within the statute. Young v. Dake 5 N. Y. 463 . That case is well considered, and is, we think, a fair constmction of the statute, which ought not to be given a strained meaning. The same doctrine has been adhered to in that state, and is re-affirmed emphatically in Becar v. Flues 64 N. Y. 518 , where a tenant was held liable for the agreed rent, who had never gone into possession, and had declined to do so.
Concui-ring, as we do, in this view of the law, we think the court below erred in its ruling, and should have allowed *464 a recovery of damages for tbe injury done plaintiff. We note further in tbe record that tbe right of possession seems to have been determined in plaintiff’s favor in proceedings before a commissioner, and we cannot understand why on any theory bis recovery, to some extent at least, was questionable. But as tenant for a year be was of course entitled to larger damages.
Tbe judgment must be reversed with costs and a new trial granted.
The other Justices concurred.
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