Walker v. Bumiller

27 Ohio C.C. Dec. 366, 25 Ohio C.C. (n.s.) 385

• Court: Ohio Court of Appeals
• Decided: May 15, 1916
• Status: Published

Opinions

JONES, 0. B., J.

The question to be determined in this case is the validity of a parol agreement between a landlord and tenant made while in possession under a written lease for one year, which attempts to create a new lease from month to month after the expiration of the original term.

It is admitted that the defendant held over, but he alleges that while in possession under his written lease for a year, he by an oral arrangement with plaintiff agreed to continue after the termination of that lease to hold as a tenant from month to month at the same rental. Such an agreement is within the statute of frauds (Secs. 8620, 8621 G. C.). It is a contract for an interest in or concerning lands and must be in writing to be valid.

A familiar exception to the rule, that an oral letting of land is invalid under the statute of frauds, is where the agreement is carried out by the delivery of possession thereunder, thus taking it out of the statute by part performance.

But it has been clearly held that a parol agreement to take effect at once or in the future, for a lease between a landlord and a tenant in possession under a previous letting is within the statute of frauds and can not be enforced, and evidence will not be admitted in support of such a contract.

The earliest ease in Ohio in which the Supreme Court has spoken on the subject is Armstrong v. Kattenhorn, 11 Ohio 265, a leading ease frequently cited with approval, in which the syllabus is as follows:

“A parol contract for a lease between landlord and tenant in possession, under a prior lease, is within the statute of frauds; unless possession be held solely under, and in performance of the parol contract, the terms of holding, clearly indicating the possession to be under the subsequent parol lease. ’ ’

And in the opinion, the court says:

“But, if possession be relied upon, it must be clearly referable to the contract, and be delivered and held in performance of it.

“Possession must give the contract life, and if they can possibly be separated, the parol agreement perishes -under the operation of the statute.

“Hence, if the possession can be referred to any other source, then the parol contract, which it is claimed to support, even to the wrongful act of the party in possession, or to a different contract, the statute applies.

“ * * * So with a tenant in possession, in case of a parol agreement for different terms of holding, if no acts are performed which clearly show that the possession is continued under the last agreement, it will be referred to the original tenancy, and such parol contract will be void.

“In the case now under consideration, the record shows no act that is not as clearly referable to the possession under the old tenancy, as the parol lease upon which recovery is sought.

“If it be contended that rent was paid under the parol contract, it may be replied, from aught that appears in the record, that the same rent was due on the original tenancy, under which the defendants were in posession.

“The possession of the defendants, then, is not shown, by unequivocal acts, to have been continued or held solely in performance of the parol contract, and must be referred to the prior lease.

“Possession must accompany the contract, in performance of it, in all cases, to avoid the statute.”

In the instant case there was nothing to distinguish the possession of the tenant from a mere continuance — a holding over under the original lease, the rent being the same and no change apparent in the relation of the parties.

In the case of Crawford v. Wick, 18 Ohio St. 190 [98 Am. Dec. 103], the first proposition of the syllabus reads:

“A parol contract for a new or supplemental lease between a landlord and his tenant, in possession under a former and subsisting lease, is within the statute of frauds; and the continued possession of the tenant does not take the parol contract out of the operation of the statute, where the continued possession of the tenant is as well referable to the first lease as to the second pai’ol lease. Armstrong v. Kattenhorn, 11 Ohio 265, followed and approved. ’ ’

In tbe opinion of tbe court in Myers v. Croswell, 45 Ohio St. 543, 547 [15 N. E. Rep. 866], tbe following language is used:

“Whatever objection may be urged against tbe doctrine of part performance of contracts within' the statute of frauds, or be said of its tendency to promote frauds, or of tbe necessity for courts to make a stand against further encroachments on the statute, it is too well settled to be now open to dispute, that certain acts done in the part performance of verbal contracts for tbe sale of lands, may operate to taire them out of the statute, and generally possession of tbe land delivered and received under and in pursuance of tbe contract amounts to such part performance. But it is equally well settled that to have that effect tbe possession must be connected with and in consequence of tbe contract ; it must be in pursuance to its terms and in part execution of them. In other words the possession must pursue and substantiate the contract.

“In Phillips v. Thompson, 1 John Ch. 131, 149, Chancellor Kent says: ‘It is well settled that if a party sets up part performance to take a parol agreement out of the statute, he must show acts unequivocally referring to, and resulting from that agreement, such as the party would not have done unless on account of that very agreement, and with a direct view to its performance. There must be no equivocation or uncertainty in the case.’ ”

And Pomeroy, Contracts Sec. 108, p. 548, quotes as follows:

“A plaintiff can not, in the face of the statute, prove a verbal contract by parol evidence and then show that it has been partly performed. This course of proceeding would be a virtual repeal of the statute. He must first prove acts done by himself or on his behalf which point unmistakably to a contract between himself and the defendant, which can not, in the ordinary course of human conduct be accounted for in any other manner than as having been done in pursuance of a contract, and which would not have been done without an existing contract; and although these acts of part performance can not of themselves indicate all the terms of the agreement sought to be enforced, they must be consistent with it and in conformity with its provisions when these shall have been shown by the subsequent parol evidence. It follows from this invariable rule, that acts which do not unmistakably point to a contract existing between the parties, or which can be reasonably accounted for in some other manner than as having been done in pursuance of a contract do not constitute a part performance sufficient in any case to take it out of the operation of the statute, even though a verbal agreement has actually been made between the parties. ’ ’

And then the rule in Ohio is stated as announced in Armstrong v. Kattenhorn, supra.

In Clark v. Guest, 54 Ohio St. 298 [43 N. E. Rep. 862], which involved the question of an oral extension of time for the removal of standing timber under a previous written contract of sale thereof, the court says on page 305:

“Such verbal extension of time is as clearly within the statute as a verbal extension of a lease, which this court has held to be within the statute. Armstrong v. Kattenhorn, 11 Ohio 265; Crawford v. Wick, 18 Ohio St. 190.”

And on page 306:

“The circuit court found as its conclusion of law upon the facts found, that it would be a fraud upon the defendant in error to revoke such verbal extension of time; and that the case was therefore taken out of the statute of frauds. This is not tenable. The statute was enacted to prevent frauds and perjuries. The law-making power knew that frauds and perjuries would be practiced with or without the statute, but it was thought that less harm would come from enacting and enforcing the statute, than otherwise. The only exceptions to the statute, engrafted therein by judicial interpretation, if not by judicial legislation, that can be justly defended, are cases in which the acts of both parties are such as to imply a contract with substantially the same certainty as would be shown by a written memorandum, as in the ease of a verbal sale of lands followed by a delivery of possession to the purchaser, and valuable permanent improvements made by him with the knowledge of the vendor.

“To say that to refuse to carry out a verbal purchase of standing growing trees is a fraud on part of the owner of the trees, is to disregard the statute, and in effect a repeal thereof. * * * He had no legal right to rely upon the verbal contract, and where there is no right there can be no fraud. If he intended to rely upon the extension of time he should have caused the contract therefor to be reduced to writing. The statute was enacted to protect men in their property rights and it should be enforced unless in eases clearly within some of the well established exceptions. ”

The rule in Ohio as to a tenant holding over is laid down in Baltimore & O. Ry. v. West, 57 Ohio St. 161, the last two clauses of the syllabus being as follows:

“Where, after the expiration of the term, the tenant holds over and pays rent for a part of another year, without any new agreement with the landlord, he becomes a tenant for that year at the same rent, and can not terminate the tenancy before the end of the year without the landlord’s consent.

“The obligation of the tenant to pay the rent for the year, in such ease, is not within the statute of frauds; the holding over being equivalent to a new entry.”

And in the opinion, on page 168, the court says:

“The tenant, by holding over, is regarded as consenting or proposing to enter upon a new term for another year at the same rent and upon the conditions of the prior occupancy, and .the landlord’s acceptance of the proposed tenancy is presumed from his receiving the rent, or other acquiescence. The agreement arises by implication of law from the conduct of the parties after the expiration of the former tenancy; and, in this respect, is essentially different from those agreements made by parties while in possession under an existing lease, for a new lease to commence in the future; as was the case of Armstrong v. Kattenhorn, 11 Ohio 265, and Crawford v. Wick, 18 Ohio St. 190.”

This language is quoted with approval in Cladwell v. Holcomb, 60 Ohio St. 427 [54 N. E. Rep. 473; 71 Am. St. Rep. 724], in which case the law is thus stated in the syllabus:

“When the tenant holds over after the expiration of any year, the landlord has the option to treat him as a tenant for another year, or as a trespasser; and unless there has been an election to treat him as a tenant, possession may be recovered by the landlord in an action of forcible detention, after the service of the three days’ notice required by the statute.

“A parol agreement for a lease to commence in the future, with a person already in possession of the premises as a tenant, is within the statute of frauds. ’ ’

In the case of Strong v. Schmidt, 8 Circ. Dec. 551 (15 R. 233), which involved a question of surrender, the court said in its opinion, pages 553 and 554:

‘ ‘ The testimony clearly shows that the defendant was in possession under a written lease. He refused to sign a new lease for the reason that he was not satisfied with its terms. He wrote letter to the other parties, saying that he would hold from month to month, and stated that orally, perhaps to the agent. The parties themselves, instead of consenting to that, answered that they would not consent. So that we have the terms, so far as any writing is concerned. We have a proposition to hold on different terms, with a refusal on the part of the landlord and under that state of facts the defendant continued in possession. There was no change in possession, nor' did the landlord in any manner or form recognize that there was a holding over under different terms than those of the lease. We see no reason whatever why the statute of frauds does not apply here and we think that all the evidence in regard to the statements made by the defendant as to how he would hold or in what manner was entirely irrelevant and illegal.

“The rule of law is — it is said that th.e presumption of law is, that he holds under the former contract from year to year. The language is varied by different courts in delivering the opinions: by some it is said to be a ‘presumption,’ by some it is said to be an ‘implied contract,’ and by some it is said to be a ‘constructive contract; ’ but no matter what it is called the law clearly is, that where the party has continued in possession after the termination of a year’s lease and the landlord has accepted rent from him, that the lessee holds for another year, and that the same is binding and obligatory upon both parties as it would be if re-executed. The landlord can evade it only at the expiration of the year, nor can the tenant leave possession of the premises. He is likewise bound to pay rent for the year. If he ehooses to leave the premises, his obligation still remains to pay. It is a binding contract. That contract can only be set aside in some manner that has reference to the law of the land. There are two and perhaps three ways in which it can be set aside; a new contract may be made, and there may be a surrender of the premises; but the new contract, in order to be binding, must be either a contract in writing under the statute of frauds, or it must be, if a parol contract, in pursuance of a change of possession, as the Supreme Court has said, which makes a new and binding contract. ’ ’

And in Schneider v. Curran, 10 Circ. Dec. 239 (19 R. 224), the same doctrine was recognized in the syllabus, as follows:

‘ ‘ A parol contract for a lease between landlord and tenant, and the tenant in possession under a prior verbal lease, is within the statute of frauds and void, and the continued possession of a tenant does not alone take such contract out of the operation of the statute; there must be a new possession taken to do this. ’ ’

Notwithstanding the clear and unqualified words of the statute, Secs. 8620, 8621, G. C., and the reported decisions shown in the long line of authorities in this' state, none of which have been in any way questioned, it is now claimed that the settled rule is to be changed because of the case of Moore v. Harter, 67 Ohio St. 250 [65 N. E. Rep. 883], and the unreported case of Corbin v. Hafer, 72 Ohio St. 685, which reversed the decision of the superior court in general term, Hafer v. Corbin, 14 Dec. 674 (6 N. S. 468). The trial judge in the instant, case felt himself bound by this unreported case. In passing on the motion for a new trial, he said-:

‘ ‘ Whatever may have been the law in this state on this question, it certainly was changed by the ruling of the Supreme Court in the case of Corbin v. Hafer, 72 Ohio St. 685. In that case the same' question as that presented in the case at bar was decided. The general term held such agreement void. * * * The Supreme Court reversed this and entered judgment for the defendant. * * *

“Believing myself bound under the rule of stare decisis to follow the Supreme Court the motion for a new trial on this point is overruled. ’ ’

. It is true as shown by the report in Safer v. Corbin, supra, that the question now before this court was involved in Corbin v. Safer. But the Supreme Court did not desire to make the decision of that case a rule of law to control future cases. No opinion was written and the court thus refrained from disturbing the authirity of any of the cases cited above beginning with Armstrong v. Kattenhorn, supra. We have been frequently admonished by the Supreme Court itself that an unreported ease can in no wise be regarded as an authority and, a fortiori, that must be held to prevail where as in this ease to hold otherwise would have the effect of changing decisions that have been repeated time and again by that court for more than seventy years, without having a single line announcing such change or giving any reason for it.

But it is contended that, as the court based its action in Corbin v. Hafer on the authority of Moore v. Harter, supra, this action must be regarded in the same light as a reported decision extending the exception to the general rule announced in that ease. In Moore v. Sorter a landlord had advised his tenant before the expiration of his term that the rent for the succeeding year would be increased $50 if he held over. The tenant did hold over, and the terms and conditions of the original lease were held to be modified as to the rate of rental, in accordance with that notice. The court says in the opinion:

“The tenant’s dissent from the terms proposed by the landlord amounts to nothing unless the latter accepts it, because the presumption is that one holding over, after notice from the landlord that a change of terms would be required, is presumed to do so on the terms proposed by the landlord. Otherwise he would put himself in the wrong and would be liable to be treated as a trespasser. ’ ’

And the court distinguished Armstrong v. Kattenhorn as not pertinent to that ease, because the landlord owned the property and had an absolute right to fix the rent, and the rights of the tenant expired with his lease, unless a new term was created by his holding over, under Baltimore & O. Ry. v. West, 57 Ohio [49 N. E. Rep. 344], in which event the new term would be under the increased rent.

A careful reading of Moore v. Harter will show that the question there decided does not apply to Corbin v. Hafer. And the mere reference to it as an authority in the list of unreported cases in Corbin v. Hafer, supra, can not be held to extend that decision so that it will apply. To do so would in effect wipe out the statute of frauds entirely as between a landlord and a tenant in possession. A tenant once in possession could, regardless of the statute, fasten any kind of a lease upon the landlord if he could only secure the necessary witnesses to show a parol contract.

Since the decision of Corbin v. Hafer, at least two decisions have been announced which recognize no change in the established rule: Hopkins v. Carroll, 32 O. C. C. 709 (11 N. S. 605); Richard v. Utter, 37 O. C. C. 143, decided by the judges of the sixth district, Chittenden, J., writing the opinion.

The language of Redesdale, Lord Chancellor, in Lindsay v. Lynch, 2 Seh. & Lef. 4, quoted in the argument of counsel in the report of Armstrong v. Kattenhorn, supra, is especially applicable to the situation here:

‘ ‘ I am not disposed to carry the cases which have been determined on the statute of frauds any further than I am compelled by former decisions. The statute was made for the purpose of preventing perjuries and frauds; and nothing can be more manifest, to any person who has been in the habit of practicing in courts of equity, than that the relaxation of that statute has been a ground of much perjury and much fraud. If the statute had been rigorously observed, the result would, probably, have been, that fewer instances of parol agreements would have occurred. Agreements would, from the necessity of the case, have been reduced to writing; whereas, it is manifest that the decisions on the subject have opened a new door to fraud; and that, under pretense of part execution if possession is had in any way whatever, means are frequently found to put a court of equity in such a situation, that, without departing from its rules, it feels obliged to break through the statute.”

The majority of the court are unwilling because of an unreported case to read into a reported decision sucb an extension of the exception to a general rule as will in effect overrule at least four well considered' decisions of the Supreme Court of acknowledged authority. We can at least know what they decide, and we feel bound to follow them rather than to conjecture that they have been displaced, modified and overruled by an unreported ease.

Indeed this has been distinctly declared to be the proper course in Louden v. Cincinnati, 90 Ohio St. 144 [106 N. E. Rep. 970], in the opinion of the court at pages 157 and 158, where the court practically admitted that the question under discussion had been given a contrary decision in the case of Armstrong v. Cincinnati 32 O. C. C. 714 (12 N. S. 76), which had been affirmed 'without report by the Supreme Court in Armstrong v. Cincinnati, 82 Ohio St. 454. But no weight was given to this unreported decision; after suggesting that the reason for its af-firmance may have been the fact that the weight of evidence was involved, the court say:

“The law of this state in reference to this subject having been declared in the case of Tiffiin v. McCormack, 34 Ohio St. 638, and Bradford Glycerine Co. v. Woolen Manufacturing Co. 60 Ohio St. 560, it would follow that if this court intended to depart from the doctrine announced in these cases it would have reported the ease and overruled these authorities. ’ ’

The doctrine of stare decisis requires that rules of law when clearly announced and established by a court of last resort should not be lightly disregarded and set aside, but should be adhered to and followed. Proper judicial subordination requires that this court should be governed by the written decisions of the Supreme Court,, and it is not at liberty to modify or extend clearly defined doctrines laid down in reported cases on some presumption that they may have been changed by reason of some unreported case. If a decision of the Supreme Court is to be overruled or modified, it must be done in distinct terms by the written decision of that court, and can not be implied from the judgment in an unreported ease.

The salutory effect of the statute of frauds has long been demonstrated, and it should be sustained in full force while it remains a part of our statute law. If it is desired to modify or repeal it, that can be done by tbe general assembly, and judicial legislation should not be invoked to extend the exceptions already engrafted upon it by decisions of any court other than that of last resort.

The judgment of the court of common pleas is therefore reversed and the cause remanded.

Jones, E. H., J., concurs.