Alvby, J.,
delivered the opinion of the Court.
It is hardly' possible to suppose that the evidence admitted by the ruling of the Court as stated, in the first hill of exception could have prejudiced the defendant; and if this were the only question in the case we should not reverse the judgment. We think, however, that the evidence should have been excluded. When an agent is [193]*193acting within the scope of his authority, his declarations accompanying his acts are admissible, as they are a part of the res gestee, and may qualify or explain the acts done by him. But in this case, the facts that Savin was the cashier of the defendant, and had negotiated for the renting of the rooms from the plaintiff, were not evidence of authority to bind the defendant by the remarks made to the agent of the plaintiff, as to the purpose for which the particular room was wanted, or the terms upon which the previous renting had been made. City Bank of Balto. vs. Bateman, I H. & J., 104. The declarations at most appear to have been of a purely casual nature, and.were without any special signification whatever.
The second exception presents a question of more importance. There was a written lease prepared by the plaintiff, or by his direction, and sent to Savin, the cashier of the defendant, to be signed, but which was never signed. This paper,, it seems, has been lost or mislaid. At a former trial between these same parties, the plaintiff gave the defendant notice to produce the paper, and in default of production, gave secondary evidence of its contents. And at the trial of this cause the plaintiff, in his testimony, referred to the paper, and described its nature and character, and his counsel then called upon the counsel of the defendant to produce the paper, under notice previously given. The reply to this request was that the paper was not in their possession. The plaintiff then proceeded to give evidence by his agent, who took the paper to Savin to be signed, that he had not the paper, hut that he left it with Savin, the cashier of the defendant. After this evidence on the part of the plaintiff, the defendant proved by Savin that the paper was handed to him by the agent of the plaintiff; — that he declined to sign it, and thinks he gave it back to the agent of the plaintiff; and also proved, by the same witness, that he had searched for the paper and could not find it, and that, [194]*194if it was not given back to the plaintiff’s agent, it was lost or mislaid, so that it could not be produced. In addition to this, the defendant then proved, by both the plaintiff and his counsel, that they had not the paper, and did not know where it was. Whereupon the defendant offered to prove hy Savin the contents of the paper, but the plaintiff objected to such evidence, on the ground that no notice had been given to him or his counsel to produce the paper; and the Court sustained the objection and excluded the evidence.
In this ruling we think there was error. There was really no use in requiring notice to be given the plaintiff to produce the paper. Having himself, on a previous trial in regard to the same subject-matter, given evidence of the contents of the paper, after notice to the defendant to produce it, and in this case also given a like notice to the defendant to produce the paper, he is estopped from saying that he could have produced it if notified to do so. He had been allowed to act upon his professed inability to produce the paper, and upon his assurance to the Court that it was not in his possession or control, and it would now be contrary to good faith to allow him to insist that he could have produced the paper upon notice hy the defendant. Moreover, both he and his attorney had sworn positively in this cause that they had not the paper, and did not know where it was. It is well settled that notice will not he required where the adverse party or his attorney has admitted the loss or destruction of the document, for in such case the notice' would he nugatory ; 1 Taylor Ev., 449, sec. 425 ; Rex vs. Haworth, 4 C. & P., 254; Foster vs. Pointer, 9 C. & P., 718; How vs. Hall, 14 East, 276; and for the same reason notice is unnecessary where the party or his attorney admits, or, as in this case, swears, that the document is not in the possession or control of either of them, and therefore cannot be produced. And we think the evidence [195]*195of the loss of the paper was, under the circumstances of the case, sufficient to let in the secondary evidence of its contents. The question, whether the loss of the instrument was sufficiently proved, to admit secondary evidence of its contents, was for the Court to determine, and not the jury. The object of the preliminary proof was merely to establish a reasonable presumption of the loss of the paper; and if the paper was supposed to be of little value, a less degree of diligence, in searching for it, was required, than if it had been regarded as of importance. 1 Greenl. Ev., sec. 558 ; Spalding vs. Bank of Susquehanna County, 9 Barr, 28 ; Taunton Bank vs. Richardson, 5 Pick., 436, 443. The degree of diligence exacted in this respect depends, in a great measure, on the importance of the lost document. Here, the paper was not signed, and there was no reason for preserving it with the care that would have been proper if it had been duly signed, and thus made the exclusive evidence of the contract of renting. We think, therefore, the evidence of the contents of the paper should have been allowed to be given.
Upon all the evidence there were five prayers offered ; one by the plaintiff, and four by the defendant. The plaintiff’s prayer was granted, while all those of the defendant, except the fourth, were rejected.
The prayer on the part of the plaintiff appears to be defective, and should, therefore, have been rejected. The controversy was as to the terms of the renting, — whether for a year, the rent payable monthly, as contended by the jolaintiff, or from month to month, subject to termination upon a month’s notice, as contended by the defendant. There was some conflict in the evidence as to the exact time when the term commenced; hut the defendant entered the demised premises, and continued in possession, and paid rent, to the 1st of January, 1874, when it quit upon giving the plaintiff a month’s previous notice. It is only upon the theory that the renting was for a year^ the rent [196]*196payable monthly, that the plaintiff could recover. By granting the prayer of the plaintiff, the jury were instructed that, if they found that the defendant became tenant of the premises mentioned for the term of one year, at the annual rent of $1800, payable monthly, then their verdict should he for the plaintiff for $150, without referring to the commencement of the term, and without designating for what month — whether January, February, March or April, within the term — the rent was claimed to he due. The prayer was, therefore, too indefinite.
The defendant’s first prayer was properly rejected. . It asserted that if the contract of renting was by parol only, and was for a year, to begin at a future day, then the contract was void, under the fourth section of the Statute of Frauds, as being a contract not to be performed within a year from the making thereof. This prayer was too abstract ; • it altogether ignored the.
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Alvby, J.,
delivered the opinion of the Court.
It is hardly' possible to suppose that the evidence admitted by the ruling of the Court as stated, in the first hill of exception could have prejudiced the defendant; and if this were the only question in the case we should not reverse the judgment. We think, however, that the evidence should have been excluded. When an agent is [193]*193acting within the scope of his authority, his declarations accompanying his acts are admissible, as they are a part of the res gestee, and may qualify or explain the acts done by him. But in this case, the facts that Savin was the cashier of the defendant, and had negotiated for the renting of the rooms from the plaintiff, were not evidence of authority to bind the defendant by the remarks made to the agent of the plaintiff, as to the purpose for which the particular room was wanted, or the terms upon which the previous renting had been made. City Bank of Balto. vs. Bateman, I H. & J., 104. The declarations at most appear to have been of a purely casual nature, and.were without any special signification whatever.
The second exception presents a question of more importance. There was a written lease prepared by the plaintiff, or by his direction, and sent to Savin, the cashier of the defendant, to be signed, but which was never signed. This paper,, it seems, has been lost or mislaid. At a former trial between these same parties, the plaintiff gave the defendant notice to produce the paper, and in default of production, gave secondary evidence of its contents. And at the trial of this cause the plaintiff, in his testimony, referred to the paper, and described its nature and character, and his counsel then called upon the counsel of the defendant to produce the paper, under notice previously given. The reply to this request was that the paper was not in their possession. The plaintiff then proceeded to give evidence by his agent, who took the paper to Savin to be signed, that he had not the paper, hut that he left it with Savin, the cashier of the defendant. After this evidence on the part of the plaintiff, the defendant proved by Savin that the paper was handed to him by the agent of the plaintiff; — that he declined to sign it, and thinks he gave it back to the agent of the plaintiff; and also proved, by the same witness, that he had searched for the paper and could not find it, and that, [194]*194if it was not given back to the plaintiff’s agent, it was lost or mislaid, so that it could not be produced. In addition to this, the defendant then proved, by both the plaintiff and his counsel, that they had not the paper, and did not know where it was. Whereupon the defendant offered to prove hy Savin the contents of the paper, but the plaintiff objected to such evidence, on the ground that no notice had been given to him or his counsel to produce the paper; and the Court sustained the objection and excluded the evidence.
In this ruling we think there was error. There was really no use in requiring notice to be given the plaintiff to produce the paper. Having himself, on a previous trial in regard to the same subject-matter, given evidence of the contents of the paper, after notice to the defendant to produce it, and in this case also given a like notice to the defendant to produce the paper, he is estopped from saying that he could have produced it if notified to do so. He had been allowed to act upon his professed inability to produce the paper, and upon his assurance to the Court that it was not in his possession or control, and it would now be contrary to good faith to allow him to insist that he could have produced the paper upon notice hy the defendant. Moreover, both he and his attorney had sworn positively in this cause that they had not the paper, and did not know where it was. It is well settled that notice will not he required where the adverse party or his attorney has admitted the loss or destruction of the document, for in such case the notice' would he nugatory ; 1 Taylor Ev., 449, sec. 425 ; Rex vs. Haworth, 4 C. & P., 254; Foster vs. Pointer, 9 C. & P., 718; How vs. Hall, 14 East, 276; and for the same reason notice is unnecessary where the party or his attorney admits, or, as in this case, swears, that the document is not in the possession or control of either of them, and therefore cannot be produced. And we think the evidence [195]*195of the loss of the paper was, under the circumstances of the case, sufficient to let in the secondary evidence of its contents. The question, whether the loss of the instrument was sufficiently proved, to admit secondary evidence of its contents, was for the Court to determine, and not the jury. The object of the preliminary proof was merely to establish a reasonable presumption of the loss of the paper; and if the paper was supposed to be of little value, a less degree of diligence, in searching for it, was required, than if it had been regarded as of importance. 1 Greenl. Ev., sec. 558 ; Spalding vs. Bank of Susquehanna County, 9 Barr, 28 ; Taunton Bank vs. Richardson, 5 Pick., 436, 443. The degree of diligence exacted in this respect depends, in a great measure, on the importance of the lost document. Here, the paper was not signed, and there was no reason for preserving it with the care that would have been proper if it had been duly signed, and thus made the exclusive evidence of the contract of renting. We think, therefore, the evidence of the contents of the paper should have been allowed to be given.
Upon all the evidence there were five prayers offered ; one by the plaintiff, and four by the defendant. The plaintiff’s prayer was granted, while all those of the defendant, except the fourth, were rejected.
The prayer on the part of the plaintiff appears to be defective, and should, therefore, have been rejected. The controversy was as to the terms of the renting, — whether for a year, the rent payable monthly, as contended by the jolaintiff, or from month to month, subject to termination upon a month’s notice, as contended by the defendant. There was some conflict in the evidence as to the exact time when the term commenced; hut the defendant entered the demised premises, and continued in possession, and paid rent, to the 1st of January, 1874, when it quit upon giving the plaintiff a month’s previous notice. It is only upon the theory that the renting was for a year^ the rent [196]*196payable monthly, that the plaintiff could recover. By granting the prayer of the plaintiff, the jury were instructed that, if they found that the defendant became tenant of the premises mentioned for the term of one year, at the annual rent of $1800, payable monthly, then their verdict should he for the plaintiff for $150, without referring to the commencement of the term, and without designating for what month — whether January, February, March or April, within the term — the rent was claimed to he due. The prayer was, therefore, too indefinite.
The defendant’s first prayer was properly rejected. . It asserted that if the contract of renting was by parol only, and was for a year, to begin at a future day, then the contract was void, under the fourth section of the Statute of Frauds, as being a contract not to be performed within a year from the making thereof. This prayer was too abstract ; • it altogether ignored the. facts proved by both plaintiff and defendant, that the latter entered the demised premises under the contract, shortly after the contract was made, and paid rent for a part of the time mentioned.
It is now fully settled, that the effect of the first, second and fourth sections of the Statute of Frauds, taken together, so far as they apply to parol leases not exceeding three years from the making thereof, is this, that the leases are valid, and that whatever remedy can be had upon them, in their character of leases, may he resorted to, but they do not confer the right to sue the lessee for damages for not taking possession. And until entry by the lessee the whole estate and right of possession remain in the lessor, the lessee having but an interesse termini, and -nothing more. Litt., secs. 58 and 459 ; Co. Lift., 210 a; Doe vs. Walker, 5 Bar. & Cr., 111. This was the opinion of Bayley, B., in Edge vs. Strafford, 1 Cr. & J., 391, and his exposition of the Statute has been approved and adopted in several subsequent cases. Bolton vs. Tomlin, 5 Adol. & El., 856 ; Lowe vs. Ross, 5 Exch., 553. Such leases are [197]*197to be considered as excepted by the second section of the Statute from the operation of the fourth; and which exception is not confined to leases which commence from the time of the making, but extends to others, provided the term does not exceed three years from the making of such parol leases. Thus, a lease by parol for a year and a half, to commence after the expiration of a lease which has a year to run, is a good lease within the Statute of Frauds, as it does not exceed three years from the making thereof. Ryley vs. Hicks, 1 Str., 651. And notwithstanding an action will not lie on such an agreement while it is merely executory, that is before entry thereunder by the lessee, yet, when a tenancy has been actually created by entry and payment of rent, or by entry alone, an action will lie, and the terms of the tenancy may be proved by parol. Inman vs. Stamp, 1 Stark, N. P. C., 12 ; Bolton vs. Tomlin, 5 Adol. & El., 856. And if the lessee has once entered and taken possession as tenant, and the term be thus commenced, he will be deemed to hold during the continuance of the term, and until it be legally determined, whether he continue to occupy the premises or not. For the principle is, that a constructive holding or occupation as tenant is sufficient after entry, without actual occupation or enjoyment. Jones vs. Reynolds, 7 C. & P., 335; Woodf. L. & T., 106.
The defendant’s second prayer was properly rejected, because it proposed to leave to the jury the construction of the second section of the Statute of Frauds; and as to the third prayer, there was no evidence whatever to show that the rent reserved to the landlord, during the term, was less than two-third parts of the improved value of the premises demised ; that is, two-thirds of the rental value for the term. In the absence of evidence, the Court' could not presume that the premises had been demised for a rent that would render the lease void.
[198]*198(Decided 21st June, 1876.)
As the judgment appealed from must he reversed, we shall say nothing in regard to the motion in arrest of judgment. Whatever defects may exist in the pleading can he corrected hy amendment before another trial.
Judgment reversed, and new trial atoarded.