Collins-Deitz-Morris Co. v. Elk City Mercantile Co.

1915 OK 533, 150 P. 457, 48 Okla. 485, 1915 Okla. LEXIS 659

• Court: Supreme Court of Oklahoma
• Decided: June 29, 1915
• Docket: 4701
• Status: Published

Opinion

Opinion by

COLLIER, C.

(after stating the facts as above). It is admitted in brief of plaintiff in error that the sole question involved in this appeal is whether or not “a contract not in writing for one year, to commence in the future, is valid under the statutes of Oklahoma.” In the case of Wickson v. Monarch Cycle Co., 128 Cal. 156, 60 Pac. 764, 79 Am. St. Rep. 36, in construing a section identical with section 941, Rev. Laws 1910, it is held that:

“The two subdivisions T1 and 5] are to be read and construed together, and, as so read, a parol lease is valid for one year * * * from the time it is made.”

This holding is in accord with the courts of last resort of Alabama, Illinois, and other states,, but in direct conflict with the decisions in New York, Dakota, and other states. In Sullivan v. Bryant, 40 Okla. 80, 136 Pac. 412, 49 L. R. A. (N. S.) 819, it is said:

“The reasoning of the California court, and the other courts following that line, does not appeal tc us so strongly as that of the New York and Dakota courts, and other courts supporting the later decisions.”

In Higgins et al. v. Gager, 65 Ark. 604, 47 S. W 848, it is held that:

“According to familiar canons of construction, we are not to conclude that different parts; of a statute méan and include the same thing, when they are susceptible of different and independent meanings and may embrace different subjects.”

Sullivan v. Bryant, supra, follows the above-quoted rule of construction, and holds subdivision 1, “an agreement that by its terms is not to be performed within a year from the making thereof,” refers to all contracts other than those embraced in subdivision 5, and that subdivision 5 governs with reference to agreements .concerning real' estate, and, if such agreement is for a longer period of duration than one year,, then it is within the statute of frauds; but if such agreement is for leasing of real property for the term, the duration or period of one year or less it does not come within the statute, regardless of whether the terms of the contract are to commence in futuro or in praésenti. In Jones et al. v. Bennett, 40 Okla. 664, 140 Pac. 148, the construction of said section 941, Rev. Laws 1910, as held in Sullivan v. Bryant, supra, is approved and reaffirmed?

It follows that, while the decisions of the courts of last resort are not in. harmony, it is settled in this state that an oral contract for the lease of real property for one year, regardless of whether the terms of the lease commence in praesenti or in futuro, is not. within the statute of frauds (section 941, Rev. Laws 1910).

The cause should be affirmed.

By the Court: It is so ordered.