Drew v. Billings-Drew Co.

Grant, J.

(after stating the facts). Four defenses are interposed:

1. There is no evidence to establish the alleged agreement.

2. Drew had no authority to make it.

3. Drew, if authorized to rent storage room, could not, as the company’s agent, without the consent of the directors, relieve himself of the obligations of the lease, and impose them upon the company.

4. The agreement, if any, was not in writing, and is void under the statute of frauds. ' >

1. We think there was sufficient evidence to establish the agreement. Mr. Baldwin testified that Mr. Drew informed, him of the organization of the corporation, and asked him if he would object to the company’s occupying the premises; that Baldwin replied that would be owing somewhat to what they wanted to occupy it for, — that he objected to putting heavy goods in the building; that Drew said the goods would not be heavy, but light.

*68 “I told him I would object to Billings and Drew carrying out that lease and using it as a storehouse, but that I would let them occupy it until I got a chance to rent it. They were to pay the same as the lease, — $75 per month.”

Pursuant to this agreement, the corporation occupied the building. In September, Baldwin obtained an opportunity to lease the building, and notified the company to vacate. Mr. Billings testified that he knew the building was occupied by the corporation, and that it was not to be occupied rent free, but he supposed Drew would take care of the rent, as he (Billings) took care of his own; meaning the rent of the store formerly occupied by him on Woodward avenue. We think there was sufficient testimony to establish the agreement.

2. Drew was vice-president of the company, and had the entire charge of the gas-fixture department. He was not acting solely in his capacity as vice-president, but as the agent of the company in control of one department of its business. If it was necessary to procure storage for some of the property under his control, he, as manager and agent, had the power to bind the company in leasing room for that purpose. His action was taken in good faith, and was evidently known to all the directors and stockholders of the corporation. His act was within the scope of his authority. 3 Clark & M. Corp. §§ 686,700,702, and authorities there cited.

3. It was not in the power of Mr. Drew to impose his lease upon the corporation without the consent of the directors, but we do not think this was the effect of the transaction. The evidence shows that the fair value of the rental was $75 per month. Drew had. gone out of business. Mr. Baldwin’s building was required for the purposes of the corporation. Drew informed Mr. Baldwin of the situation. Baldwin declined to accept the corporation as his tenant under the lease, but was willing to lease the building to the corporation at the same rental as Drew had agreed to pay him until he could secure another tenant. The result was that Baldwin released Mr. Drew, *69 and accepted the corporation in his stead as tenant. A surrender resulted by operation of law. Stewart v. McLaughlin’s Estate, 126 Mich. 1 ( 85 N. W. 266 , 87 N. W. 218 ); Donkersley v. Levy, 38 Mich. 54 ; Gingrass v. Mather, 128 Mich. 582 ( 87 N. W. 758 ); Youell v. Kridler, 105 Mich. 344 ( 63 N. W. 439 ).

4. It follows from what has already been said that tbe statute of frauds does not apply. There was a surrender of tbe old lease and tbe making of a new one. Tbe time fixed by tbe new lease was indefinite. It was capable of performance witbin a year, and was in fact performed witbin that time. It was therefore valid. Smalley v. Mitchell, 110 Mich. 650 ( 68 N. W. 978 ); Carr v. McCarthy, 70 Mich. 258 ( 38 N. W. 241 ).

Tbe decree is affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Carpenter, J., did not sit.