STEPHENSON , J.
This is an appeal from a judgment, granting restitution of premises and money damages, entered by the Municipal Court of Hillsboro, following a bench trial, in favor of Earl S. Manifold, plaintiff below and appellee herein, against Robert and Lorraine Schuster, defendants below and appellants herein. Appellants assign the following error:
"Defendants-Appellantsstatethattherewas error in the proceedings and judgment below, prejudicial to them, in that the judgment and final orders of the Hillsboro Municipal Court are contrary to law and against the manifest weight of the evidence."
The facts pertinent to this appeal are as follows. Appellee placed an ad in a local paper offering to rent his farm, connected outbuilding and a house. Appellants responded and reached an oral agreement to rent the farm and house for a period of three years. Appellants insisted upon a three year lease, in part, because of the cost associated with moving farm equipment and placing a greenhouse on the rental property. Appellee was also amenable to such a term because he was looking for a long term tenant. Rent on the house was fixed at $175 per month, payable in advance, while the acreage was to be farmed "on the halves." Appellee instructed his counsel to prepare a written lease reflecting the parties' agreement and authorized the appellants to take possession prior to the execution of this document.
Appellants moved in during the late fall of 1986. At that time, they erected a greenhouse as had been discussed by the parties. However, the written lease was never executed. At trial, appellee indicated that shortly after appellants moved in and began their farming operation, he became dissatisfied. The initial problem began over a complete set-off for the first month's rent proposed by appellants in exchange for their replacing a wire on the clothes dryer. Appellee still wanted to rent to them but not on a three year term. Appellee testified that he considered the tenancy to be month to month.
Appellants framed the premises for the 1987 crop year and upon notifying appellee of the yields and relative profits in November of 1987, appellee informed them he had leased the farm to one Marion Hartman. Prior to this notification, appellants had planted a small winter wheat crop for 1988. Appellants admit that, thereafter, they stopped paying rent on the house in January 1988 through date of trial on July 7, 1988. Appellee testified at trial that appellants were usually two or three months behind in their rental payments on the premises.
On June 13, 1988 appellee filed a complaint in forcible entry and detainer. Appellants, appearing
pro se,
filed an answer and a counterclaim seeking damages of $3,000 for breach of the lease. The matter ultimately came on for trial to the court with appellee being represented by counsel and appellants appearing
pro
se.
On July 7, 1988, the matter was tried to the court which found that the oral lease was unenforceably by virtue of the statute of frauds. The court further made the following oral findings of fact:
"So in light of that the Court makes a finding that
it was a month to month tenancy.
The Court furtherfinds that the Defendants had notice that the new tenant was coming in November or December.
* * *
The Court further finds that there's no evidence on the counterclaim regarding defendants' damages. The court finds that the plaintiff is entitled to restoration of premises." (Emphasis added.)
The court granted judgment for restitution of the premises to appellee together with damages for unpaid rent. The court further ordered that the unharvested wheat growing on the property would be harvested by a third person and the net proceeds therefrom would be divided equally between the parties.
On their assignment of error, appellants argue that the court erred both in holding the oral tenancy unenforceable under the statute of frauds and in finding that the resultant tenancy was month to month rather than year to year. We disagree.
Ohio law provides that no lease shall be made, and no action shall be brought upon a lease agreement, unless the lease is in writing and signed by the party to be charged therewith. R.C. 1335.04 & 1335.05. The evidence being uncontroverted that no written lease, or memorandum thereof, was ever executed, any oral agreement by the parties in the cause
sub judice
was properly held unenforceable.
Appellants contend, however, that the parol lease was taken out of the statute of frauds by virtue of partial performance citing,
inter alia, Delfino v. Paul Davies Chevrolet, Inc.
(1965), 2 Ohio St. 2d 282. However, in
Delfino,
the court stated as follows:
"The fraud against which the courts grant relief, notwithstanding the statute of frauds, consists in a refusal to perform an agreement upon the faith of which the plaintiff has been misled, to his injury or made some irretrievable change of position, especially where the defendant has secured an
unconscionable advantage,
and not in the mere moral wrong involved in the refusal to perform a contract which by reason of the statute cannot be enforced. When one party induces another, on the faith of a parol contract, to place himself in a worse situation than he could have been if no agreement existed, and especially if the former derives a
benefit
therefrom at the expense of the latter, and avails himself of his legal advantage, he is guilty of fraud, and uses the statute for a purpose not intended-- the injury of another-for his own profit." Id. at 287-288 (emphasis added).
On the basis of that language from
Delfino,
this court recently held, in
Heiss v. Gragg
(October 30, 1989), Ross App. No. 1560, unreported, that the doctrine of partial performance will not take a parol agreement out of the statute of frauds without a showing of detrimental reliance by the party arguing partial performance, or an unconscionable advantage obtained by the party raising the statute. Appellants herein have not argued in their brief, and we cannot determine, any "unconscionable advantage" obtained by appellee or how appellants have been induced by appellee to rely on the parol lease to their detriment.
Indeed, testimony at trial revealed that appellants were usually two or three months behind in rent payments and, by the time of trial, appellee had not received any rent for six months. Moreover, at trial appellant Robert Schuster, revealed that certain improvements constructed by them, on the premises, were being dismantled and taken with them. As aforesaid, the trial court further ordered that the net proceeds from unharvested crops growing on the premises would be split between the parties.
Under these circumstances we cannot hold that appellee has obtained an "unconscionable advantage" or that appellants have been misled to their detriment. Accordingly, on the bases of
Delfino,
supra, and
Heiss,
supra, we hold that there was insufficient partial performance to take the parol lease out of the statute of frauds.
The law provides that a tenancy at will is created when possession of the premises is taken under an invalid lease.
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STEPHENSON , J.
This is an appeal from a judgment, granting restitution of premises and money damages, entered by the Municipal Court of Hillsboro, following a bench trial, in favor of Earl S. Manifold, plaintiff below and appellee herein, against Robert and Lorraine Schuster, defendants below and appellants herein. Appellants assign the following error:
"Defendants-Appellantsstatethattherewas error in the proceedings and judgment below, prejudicial to them, in that the judgment and final orders of the Hillsboro Municipal Court are contrary to law and against the manifest weight of the evidence."
The facts pertinent to this appeal are as follows. Appellee placed an ad in a local paper offering to rent his farm, connected outbuilding and a house. Appellants responded and reached an oral agreement to rent the farm and house for a period of three years. Appellants insisted upon a three year lease, in part, because of the cost associated with moving farm equipment and placing a greenhouse on the rental property. Appellee was also amenable to such a term because he was looking for a long term tenant. Rent on the house was fixed at $175 per month, payable in advance, while the acreage was to be farmed "on the halves." Appellee instructed his counsel to prepare a written lease reflecting the parties' agreement and authorized the appellants to take possession prior to the execution of this document.
Appellants moved in during the late fall of 1986. At that time, they erected a greenhouse as had been discussed by the parties. However, the written lease was never executed. At trial, appellee indicated that shortly after appellants moved in and began their farming operation, he became dissatisfied. The initial problem began over a complete set-off for the first month's rent proposed by appellants in exchange for their replacing a wire on the clothes dryer. Appellee still wanted to rent to them but not on a three year term. Appellee testified that he considered the tenancy to be month to month.
Appellants framed the premises for the 1987 crop year and upon notifying appellee of the yields and relative profits in November of 1987, appellee informed them he had leased the farm to one Marion Hartman. Prior to this notification, appellants had planted a small winter wheat crop for 1988. Appellants admit that, thereafter, they stopped paying rent on the house in January 1988 through date of trial on July 7, 1988. Appellee testified at trial that appellants were usually two or three months behind in their rental payments on the premises.
On June 13, 1988 appellee filed a complaint in forcible entry and detainer. Appellants, appearing
pro se,
filed an answer and a counterclaim seeking damages of $3,000 for breach of the lease. The matter ultimately came on for trial to the court with appellee being represented by counsel and appellants appearing
pro
se.
On July 7, 1988, the matter was tried to the court which found that the oral lease was unenforceably by virtue of the statute of frauds. The court further made the following oral findings of fact:
"So in light of that the Court makes a finding that
it was a month to month tenancy.
The Court furtherfinds that the Defendants had notice that the new tenant was coming in November or December.
* * *
The Court further finds that there's no evidence on the counterclaim regarding defendants' damages. The court finds that the plaintiff is entitled to restoration of premises." (Emphasis added.)
The court granted judgment for restitution of the premises to appellee together with damages for unpaid rent. The court further ordered that the unharvested wheat growing on the property would be harvested by a third person and the net proceeds therefrom would be divided equally between the parties.
On their assignment of error, appellants argue that the court erred both in holding the oral tenancy unenforceable under the statute of frauds and in finding that the resultant tenancy was month to month rather than year to year. We disagree.
Ohio law provides that no lease shall be made, and no action shall be brought upon a lease agreement, unless the lease is in writing and signed by the party to be charged therewith. R.C. 1335.04 & 1335.05. The evidence being uncontroverted that no written lease, or memorandum thereof, was ever executed, any oral agreement by the parties in the cause
sub judice
was properly held unenforceable.
Appellants contend, however, that the parol lease was taken out of the statute of frauds by virtue of partial performance citing,
inter alia, Delfino v. Paul Davies Chevrolet, Inc.
(1965), 2 Ohio St. 2d 282. However, in
Delfino,
the court stated as follows:
"The fraud against which the courts grant relief, notwithstanding the statute of frauds, consists in a refusal to perform an agreement upon the faith of which the plaintiff has been misled, to his injury or made some irretrievable change of position, especially where the defendant has secured an
unconscionable advantage,
and not in the mere moral wrong involved in the refusal to perform a contract which by reason of the statute cannot be enforced. When one party induces another, on the faith of a parol contract, to place himself in a worse situation than he could have been if no agreement existed, and especially if the former derives a
benefit
therefrom at the expense of the latter, and avails himself of his legal advantage, he is guilty of fraud, and uses the statute for a purpose not intended-- the injury of another-for his own profit." Id. at 287-288 (emphasis added).
On the basis of that language from
Delfino,
this court recently held, in
Heiss v. Gragg
(October 30, 1989), Ross App. No. 1560, unreported, that the doctrine of partial performance will not take a parol agreement out of the statute of frauds without a showing of detrimental reliance by the party arguing partial performance, or an unconscionable advantage obtained by the party raising the statute. Appellants herein have not argued in their brief, and we cannot determine, any "unconscionable advantage" obtained by appellee or how appellants have been induced by appellee to rely on the parol lease to their detriment.
Indeed, testimony at trial revealed that appellants were usually two or three months behind in rent payments and, by the time of trial, appellee had not received any rent for six months. Moreover, at trial appellant Robert Schuster, revealed that certain improvements constructed by them, on the premises, were being dismantled and taken with them. As aforesaid, the trial court further ordered that the net proceeds from unharvested crops growing on the premises would be split between the parties.
Under these circumstances we cannot hold that appellee has obtained an "unconscionable advantage" or that appellants have been misled to their detriment. Accordingly, on the bases of
Delfino,
supra, and
Heiss,
supra, we hold that there was insufficient partial performance to take the parol lease out of the statute of frauds.
The law provides that a tenancy at will is created when possession of the premises is taken under an invalid lease. See Restatement of Law 2d, Property (1976), 82-83, section 2.3. and comment A. Upon payment and acceptance of rent, this tenancy at will then converts to a periodic tenancy.
Id; Sizzi, Inc. v. Atlantic Dept. Stores, Inc.
(1976), 49 Ohio App. 2d 65, 70. Having determined that the tenancy is periodic in nature, it must then be determined what that "period" is. Appellants argue that if a periodic tenancy did, in fact, exist then the period is year to year. We disagree.
In
Lithograph Building Co. v. Watt
(1917), 96 Ohio St. 74 at paragraph six of the syllabus, the Supreme Court held as follows:
"Possession taken and rents paid under a defectively executed lease creates a tenancy from year to year, or month to month,
dependent upon the terms as to payment of rentals,
and the lessor, by instituting an action for accrued rentals or for the purpose of ejecting the lessee for non-payment of rentals, is not thereby estopped to question the validity of such lease." (Emphasis added.)
In the same vein, the court in
Wineburgh v. Toledo Corp.
(1932), 125 Ohio St. 219, in paragraph one of the syllabus, stated as follows:
"A defectively executed lease for
a term of five years upon monthly rental creates a tenancy in the lessee from month to month;
and where the tenants occupying under such lease vacates the premises at the end of a month, after fully prepaying the rentals then due, he is not liable to the lessor for the rental installments accruing after such vacation, in an action at law based upon such defectively executed lease.
(Richardson v. Bates,
8 Ohio St., 257, approved and followed.)" (Emphasis added.)
Whatever other arrangements there might have been for payment after the harvesting of crops, there is uncontroverted evidence from both parties that, either by agreement or course of dealing, rental payments in the amount of $175.00 per month were to be paid to appellee. Moreover, as statedpreviously, appellee testified that he believed the tenancy was "month to month."
In reviewing a lower court's judgment we must presume findings by the trier of fact to be correct and we cannot reverse a judgment supported by some competent and credible evidence going to all the essential elements of a case.
Morris Co. v. Foley Construction Co.
(1978), 54 Ohio St. 2d 279 at the syllabus;
Seasons Coal Co. v. Cleveland
(1984), 10 Ohio St. 3d 77, 80;
Karches v. city of Cincinnati
(1988), 38 Ohio St. 3d 12, 19. In that the syllabus language of
Lithograph Building Co.
and
Wineburgh
hold that the term of a periodic tenancy is dependant upon payment of rentals, and there being sufficient evidence presented at trial both as to rental payments and the appellee's understanding of the period of the tenancy, to support a finding of the trial court that a month to month tenancy existed, we decline to accept appellant's argument that the court erred in that regard.
As a final matter, we turn to consider whether the judgment below properly granted restitution of the premises to appellee under the forcible entry and detainer provisions of R.C. Chapter 1923. Under R.C. 1923.02(A)(2), a landlord may bring an action against any tenant in possession, under an oral tenancy, who is in default of rental payment. As a prerequisite to bringing an action in forcible entry and detainer, a landlord must give the so called "3 day notice" required by R.C. 1923.04(A):
"(A) Except as provided in division (B) of this section, a party desiring to commence an action under this chapter, shall notify the adverse party to leave the premises, for the possession of which the action is about to be brought,
three or more days before beginning the action,
by certified mail, return receipt requested, or by handing a written copy of the notice to the defendant in person, or by leaving it at his usual place of abode or at the premises from which the defendant is sought to be evicted.
"Every notice given under this section by a landlord to recover residential premises shall contain the following language printed or writtenin a conspicuous manner: 'You are being asked to leave the premises. If you do not leave, an eviction action may be initiated against you. If you are in doubt regarding your legal rights and obligations as a tenant, it is recommended that you seek legal assistance.'"
Appellants admit to receiving such notice for purposes of vacating the farmhouse, but argue such notice was never given to vacate the farm itself. As aforesaid, the trier of fact made a finding that sufficient notice was given appellants that a new tenant would be taking possession.
Therefore, it must be determined whether such finding was against the manifest weight of the evidence.
At trial, appellant gave the following testimony:
"MR. SCHUSTER: When I finished hauling the corn, the last crop I harvested last fall, I called Mr. Manifold that evening and he told me that he rented the farm. . . . And then he told me that he cash rented it to someone else because he just didn't want to take the chance or obligation anymore."
Appellee gave similar testimony:
"Q. O.K., when did you end Bob's use of the farm? The farming operation.
"A. In the fall, last fall.
"Q. And you arranged for Marion Hartman to do the work?
"A. That's right.
"Q. And did you notify Bob about it?
"A. Yes I did, as soon as the arrangements were made.
"Q. When did you start talking to Bob or Lorraine about the next years farming operations?
"A. It was about the same time that he called and reported what his harvest had been. I would say it was probably in the first part of December."
The record does not reveal that any written notice was given in the fall of that year. Thus, it must be assumed that the trial court based its finding in this regard on the foregoing testimony.
As set forth previously, R.C. 1923.04(A) specifies only three methods by which a landlord can provide the required notice to a tenant. These include certified mail, physically handing a written copy of the notice to the tenant or leaving such notice either at his usual place of abode or at the subject premises. Because the statute does not provide for oral notice over the phone, we hold that the conversation between appellee and appellants, following the harvest, did not constitute proper notice under the statute. If the oral notice over the phone did not constitute proper statutory notice, then we must determine what legal significance, if any, is to be attached to appellee's actions.
In effect, appellants argue that appellee, by his actions, breached the lease and effected their wrongful eviction. In the recent case of
Foote Theater, Inc. v. Dixie Roller Rink, Inc.
(1984), 14 Ohio App. 3d 456, 457-458, the court, citing
Liberal Savings & Loan Co. v. Frankel Realty Co.
(1940), 137 Ohio St. 489, 498-499, stated the elements for eviction as follows:
"Actual eviction involves expulsion or exclusion from the demised premises; constructive eviction, surrender of possession by the tenant on justifiable grounds. The distinction between the two kinds of eviction is accurately and fully explained in 2 Tiffany Landlord and Tenant, 1263, Section 185(d) from which we quote: 'In order that there be an eviction by the landlord, in the legal sense, it is necessary that the tenant no longer retain possession of the premises. In case of an actual dispossession of the tenant, an "actual eviction," no question can arise in this regard, but when there is merely an interference with his possession and enjoyment, it is necessary that the tenant relinquish possession of the premises in order that there be a "constructive eviction," the theory being that the acts of interference by the landlord compel the tenant to leave, and that he is thus in effect dispossessed, though not forcibly deprived of possession. As has been remarked, "the proposition that there can be retention of demised premises and an eviction are logically and legally contradictory.'"So
long as the tenant remains in possession he cannot successfully maintain that he has been constructively evicted."
Despite his having told appellants that the farm would be leased to another party the following spring, the appellant's were neither expelled from the premises nor compelled to leave by appellee. Thus, there was no wrongful actual eviction or constructive eviction. Furthermore, because the periodic tenancy was month to month, appellee did not breach any duty to appellants by leasing the property to another party. While the evidence at trial was unclear as to when the new tenant would be taking possession of the farm, it is clear that it would not happen for some months. At common law
the appellee can terminate a month to month tenancy by giving notice one month in advance. 50 Am. Jur. 2d, Landlord and Tenant, 94 Sec. 1207. Some authority in Ohio would seem to suggest that notice to terminate need not necessarily be given one month in advance.
See
65 O. Jur. 3d Landlord and Tenant, Sec. 77, 114-115. In any event, appellee herein was not required to give notice of termination to appellants until thirty-one days before the new tenant would take possessionthe following year.
Therefore, no real legal significance can be assigned to the telephone conversation between the parties in December of 1987. Because the term of the tenancy was month to month, appellee was free to terminate such tenancy whenever he chose upon giving one month's notice. Because neither the new tenant nor appellee physically expelled appellants from the premises, or constructively evicted them, there was no wrongful eviction or breach of the lease. Appellee was merely giving advance courtesy notice that the lease would be terminated the following year. Accordingly, appellants were not justified in their refusal to pay rent for the ensuing six months and their failure to do so breached the lease.
Finally, we address the sufficiency of the statutory "3 day notice" served on appellants prior to the commencement of this cause, a copy of which is attached to appellee's complaint. Appellants admitted receipt of such notice at trial and we must now insure that it satisfies R.C. 1923.04. After examining such notice, we hold that it complies with the law. It contains the statutory language required by R.C. 1923.04(A), it was served more than 3 days before the action was commenced, it identifies the lands as well as the house at the farm and appellants admit to having received it. Appellee has thus satisfied all prerequisites for restitution of the premises.
On the basis of the foregoing, appellants' assignment of error is overruled and the judgment affirmed.
Judgment affirmed.
GREY, J., Concurs In Judgment & Opinion:
HARSHA,J., Dissents with Opinion: