Finch, J. —
We do not discover in the lease under which plaintiff claims to obtain possession of the property in question the element of uncertainty upon which the defense is primarily founded. It purports to let the premises in dispute for the term of two years from the ensuing first day of Hay, at the yearly rent of $700 for the first year and $1,000 for the second, to be paid in equal monthly advance payments, and contains the ordinary and usual provisions for the protection of lessor and lessee. It has, however, a further provision, [104]*104looking to the purchase of the property by the lessee, which is claimed to be imperfect and incomplete as an agreement of sale, and to infect with its own' uncertainty the entire contract. The stipulation thus criticised is in these words, viz.: “ The party of the first part agrees to sell to the party of the.second part, and the party of the second part agrees to buy from the party of the first part, the house and lot herein leased, for the sum of $8,000 lawful money of the United States- as per special agreement signed in the same time with this lease ; a sale of the property voids the lease, and can be effected any time during the term of the lease upon two months’ previous notice given to the party of the first part by the party of the second part of his intention to effect the sale.” The operation of this provision is claimed to be rendered doubtful and uncertain by its reference to a “ special agreement ” contemplated to be concurrently executed. The argument at our bar developed a question of construction. The respondent contended that the “ special agreement ” referred to was not a separate and distinct contract, but the agreement for purchase and sale contained in the lease, and put stress upon the words “ signed in ” as- well as the fact that the lease was drawn by the lessor himself, who was a German, somewhat awkward in the use of an unfamiliar language, and wholly inexperienced in the drawing of legal papers. The appellant, however, insists upon the more natural and obvious meaning, that the “ special agreement ” contemplated was one fixing the minor details of the contract of sale, and to be concurrently executed, so that the signing of the lease was merely provisional and conditional, and until the further instrument was executed no complete contract was made. But the lease as signed contained within itself, even as it respected the contract of sale, a complete and perfect agreement, if no reference had been made to a further settlement of details, or if such settlement and modification was waived. One agreed to buy and the other to sell. The price was fixed at $8,000. It was to be paid in lawful money bf the United States, and in legal effect, [105]*105at the time of the consummation of the sale by the delivery of the deed, the time of conveyance and payment was fixed ; it was to be during the continuance of the lease and upon two months’ previous notice, but within those restrictions was at the option of the lessee. When made it avoided the lease. The agreement, therefore, in and of itself, had every element necessary to its completeness, and if at the .time it was signed no further agreement was in any manner made or presented, claimed or insisted upon, the natural inference would be either that none was contemplated, because both parties understood the contract as respondent reads it, or that it was entirely waived, the parties resting upon the paper signed as a complete execution of their contract. Whether a contract was in fact executed, or only partially and incompletely executed, was therefore the question litigated, and to some extent was a question of fact. The paper actually signed was admissible, of course, for it tended to show the making of a complete and perfect contract, and was supplemented by the oath of the plaintiff that no other or' further paper was executed at the same time, and no other was presented or shown to him. In this respect he was corroborated by two other witnesses present at the execution óf the lease. At this point the defendant moved for a nonsuit, upon the ground that no completed contract had been executed and the plaintiff had not bound himself to buy. What we have said indicates that the motion was properly denied, for upon the facts it was competent for the jury to find that no further agreement was contemplated at the time of the execution of the lease. The defendant then gave rebutting evidence.' He called the owner and lessor, who testified that a further paper specifying details and conditions of the contract of purchase was prepared and presented at the time of the execution of the lease; that plaintiff declined to sign it until he consulted a lawyer, and later refused entirely. If this was true the minds of the parties never met, and no completed contract was executed.
[106]*106The evidence having closed, the court charged, as. matter of law, that the agreement signed was of a character sufficient, if perfected, to be valid and effectual; but whether or not a complete and perfected agreement was in truth made was a question of fact for-the jury.
Apparently'the learned counsel for the defendant meant to except to the proposition of the law laid down by -the court. If he had done so, the exception would have been unavailing, for it is certainly true that the instrument on -its face contained every necessary element of a complete and perfect contract. But 'the exception was inaccurate. It was taken to so much of the charge “ as states that the lease produced by the plaintiff is a complete and executed instrument, as appears upon its face.” The learned judge nowhere spoke of it as “ completed and executed.” He described it as complete on its face and -V signed,” but whether executed as a complete- and perfected contract was precisely the question submitted to the jury. In the progress of the charge the court stated to the jury the evidence given on the part of the defendant, tending to show that a separate and special agreement was prepared, presented for execution and refused, and said: “Tf but one of these papers was executed, and under this understanding as detailed by Mr. Eamsperger, the other, for any reason whatsoever, was left unexecuted, the -two papers together making the agreement, there would have been no complete agreement between the parties as to these premises.” The learned judge, however, further said, adverting to defendant’s version of the facts: “ It is needful for the defendant to establish this defense to your satisfaction, because the plaintiff produces a lease which is in form complete and signed by the parties.” It is claimed that this proposition was erroneous and was reached by defendant’s exception “ to that part of the chai’ge which-says that the burden of proof is on the defendant to impeach the lease.” Hotting is said in the charge as to the burden of proof or about impeaching the lease. The issue as to which the burden of proof was on the plaintiff was that of title, of right to the [107]*107possession of the land, and that the burden remained with him to the end. But the court was not speaking of that, nor of the burden of proof in connection with it. Attention was being directed to a conflict of evidence upon a question of fact arising under the main issue, and the language used can fairly be said to mean no more than that the plaintiff having made out a prima facie case the defendant must give some evidence to rebut it which the jury believe, or the prima facie case must prevail. In such cases it is sometimes, and perhaps inaccurately, said that the burden of proof is shifted.
In Heineman agt. Hurd (62 N.
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Finch, J. —
We do not discover in the lease under which plaintiff claims to obtain possession of the property in question the element of uncertainty upon which the defense is primarily founded. It purports to let the premises in dispute for the term of two years from the ensuing first day of Hay, at the yearly rent of $700 for the first year and $1,000 for the second, to be paid in equal monthly advance payments, and contains the ordinary and usual provisions for the protection of lessor and lessee. It has, however, a further provision, [104]*104looking to the purchase of the property by the lessee, which is claimed to be imperfect and incomplete as an agreement of sale, and to infect with its own' uncertainty the entire contract. The stipulation thus criticised is in these words, viz.: “ The party of the first part agrees to sell to the party of the.second part, and the party of the second part agrees to buy from the party of the first part, the house and lot herein leased, for the sum of $8,000 lawful money of the United States- as per special agreement signed in the same time with this lease ; a sale of the property voids the lease, and can be effected any time during the term of the lease upon two months’ previous notice given to the party of the first part by the party of the second part of his intention to effect the sale.” The operation of this provision is claimed to be rendered doubtful and uncertain by its reference to a “ special agreement ” contemplated to be concurrently executed. The argument at our bar developed a question of construction. The respondent contended that the “ special agreement ” referred to was not a separate and distinct contract, but the agreement for purchase and sale contained in the lease, and put stress upon the words “ signed in ” as- well as the fact that the lease was drawn by the lessor himself, who was a German, somewhat awkward in the use of an unfamiliar language, and wholly inexperienced in the drawing of legal papers. The appellant, however, insists upon the more natural and obvious meaning, that the “ special agreement ” contemplated was one fixing the minor details of the contract of sale, and to be concurrently executed, so that the signing of the lease was merely provisional and conditional, and until the further instrument was executed no complete contract was made. But the lease as signed contained within itself, even as it respected the contract of sale, a complete and perfect agreement, if no reference had been made to a further settlement of details, or if such settlement and modification was waived. One agreed to buy and the other to sell. The price was fixed at $8,000. It was to be paid in lawful money bf the United States, and in legal effect, [105]*105at the time of the consummation of the sale by the delivery of the deed, the time of conveyance and payment was fixed ; it was to be during the continuance of the lease and upon two months’ previous notice, but within those restrictions was at the option of the lessee. When made it avoided the lease. The agreement, therefore, in and of itself, had every element necessary to its completeness, and if at the .time it was signed no further agreement was in any manner made or presented, claimed or insisted upon, the natural inference would be either that none was contemplated, because both parties understood the contract as respondent reads it, or that it was entirely waived, the parties resting upon the paper signed as a complete execution of their contract. Whether a contract was in fact executed, or only partially and incompletely executed, was therefore the question litigated, and to some extent was a question of fact. The paper actually signed was admissible, of course, for it tended to show the making of a complete and perfect contract, and was supplemented by the oath of the plaintiff that no other or' further paper was executed at the same time, and no other was presented or shown to him. In this respect he was corroborated by two other witnesses present at the execution óf the lease. At this point the defendant moved for a nonsuit, upon the ground that no completed contract had been executed and the plaintiff had not bound himself to buy. What we have said indicates that the motion was properly denied, for upon the facts it was competent for the jury to find that no further agreement was contemplated at the time of the execution of the lease. The defendant then gave rebutting evidence.' He called the owner and lessor, who testified that a further paper specifying details and conditions of the contract of purchase was prepared and presented at the time of the execution of the lease; that plaintiff declined to sign it until he consulted a lawyer, and later refused entirely. If this was true the minds of the parties never met, and no completed contract was executed.
[106]*106The evidence having closed, the court charged, as. matter of law, that the agreement signed was of a character sufficient, if perfected, to be valid and effectual; but whether or not a complete and perfected agreement was in truth made was a question of fact for-the jury.
Apparently'the learned counsel for the defendant meant to except to the proposition of the law laid down by -the court. If he had done so, the exception would have been unavailing, for it is certainly true that the instrument on -its face contained every necessary element of a complete and perfect contract. But 'the exception was inaccurate. It was taken to so much of the charge “ as states that the lease produced by the plaintiff is a complete and executed instrument, as appears upon its face.” The learned judge nowhere spoke of it as “ completed and executed.” He described it as complete on its face and -V signed,” but whether executed as a complete- and perfected contract was precisely the question submitted to the jury. In the progress of the charge the court stated to the jury the evidence given on the part of the defendant, tending to show that a separate and special agreement was prepared, presented for execution and refused, and said: “Tf but one of these papers was executed, and under this understanding as detailed by Mr. Eamsperger, the other, for any reason whatsoever, was left unexecuted, the -two papers together making the agreement, there would have been no complete agreement between the parties as to these premises.” The learned judge, however, further said, adverting to defendant’s version of the facts: “ It is needful for the defendant to establish this defense to your satisfaction, because the plaintiff produces a lease which is in form complete and signed by the parties.” It is claimed that this proposition was erroneous and was reached by defendant’s exception “ to that part of the chai’ge which-says that the burden of proof is on the defendant to impeach the lease.” Hotting is said in the charge as to the burden of proof or about impeaching the lease. The issue as to which the burden of proof was on the plaintiff was that of title, of right to the [107]*107possession of the land, and that the burden remained with him to the end. But the court was not speaking of that, nor of the burden of proof in connection with it. Attention was being directed to a conflict of evidence upon a question of fact arising under the main issue, and the language used can fairly be said to mean no more than that the plaintiff having made out a prima facie case the defendant must give some evidence to rebut it which the jury believe, or the prima facie case must prevail. In such cases it is sometimes, and perhaps inaccurately, said that the burden of proof is shifted.
In Heineman agt. Hurd (62 N. Y., 455) it was observed that by such expression is only meant “ that there is a necessity of evidence to answer the prima fade case or it will prevail.” And the same thing was said in Lamb agt. Chicago and Alton Railroad Company (46 N. Y., 279). Substantially that, and no more than that, was the evident meaning of the court in the present case, and we do not think it was intended or can be fairly construed to mean that the burden of the issue tendered by the complaint was upon the defendants. On the contrary, we think its fair construction is that the burden of proof was on the plaintiff; that he had borne it so far as to have made out a prima facie case, and that must prevail unless the defendant gave some evidence tending to rebut it which the jury could believe. The language of the charge might possibly bear a stronger construction; but even then it could not be justly said to have related to the burden of proof upon the issue of title. We do not think the jury were in any manner misled.
But the defendant also appeals from the order which gave to the plaintiff an extra allowance of seventy-five dollars. The subject-matter involved was the right of possession of the property for two years, subject to the rent reserved.
Whether that right had any money value was not shown. If the plaintiff succeeded he gained in money value only what the right of possession was worth over and above the rent which burdened it.
[108]*108If he lest, that and that only was the measure of loss. No basis, therefore, existed for the computation of an extra allowance and the order should be reversed (People agt. Alb. and Susq. R. R., 45 N. Y., 499; Coates agt. Goddard, 2 J. & S., 118). The order, therefore, cannot be sustained and must be reversed, but the judgment should be affirmed.
All concur, except Tract, J., absent.
Judgment affirmed, with costs, and order" for extra allowance reversed, without costs.