Opinion
February, 1896.
W.E. Benjamin, for appellant.
A.E. Hagemann, for respondent.
The appellant sought to dispossess the respondent upon the assumption that the latter held over his term as a monthly tenant after the statutory notice to quit had been given.
The defense was that a verbal lease for one year had been entered into, and, upon a direct conflict of evidence, this defense prevailed.
We are asked to reverse the order upon the evidence, but fail to find that the preponderance is with the appellant; and, in consonance with familiar rules, the jury's determination upon conflicting testimony is not to be disturbed.
The fact that the receipts for rent, signed by the landlord, bore the words, "Terms of letting one month only," does not show that the lease was not for a year if the parties had actually agreed that it should be, and the conclusion that they had is founded upon acceptable proof.
A point is made that the agreement was in contravention of the Statute of Frauds, in that it provided for a tenancy from May 1, 1895, to May 1, 1896, and that it was made while the tenant was in possession before the accrual of the April rent; thus it is claimed that the verbal lease was for thirteen months instead of twelve, and so void.
From the receipts in evidence and from the understanding of the parties, it appears without contradiction that the April rent was payable in advance, and was, therefore, due prior to the date of the agreement, which was made on the fourth day of that month.
Therefore, the lease was properly viewed as for a year to commence in futuro, and as such was not repugnant to the statute.
Moreover, the Statute of Frauds was not alluded to upon the trial, and the whole question litigated was as to the termination of the tenancy by the five days' notice.
The appellant claims that there was error in the exclusion of a question asked the defendant, whether he would have paid his April rent if the verbal agreement of lease had not been made. The question, in view of the attitude taken upon the trial, certainly appeared to be immaterial and was very vague, if supposed to touch the question of the Statute of Frauds; but, at all events, the exclusion was proper, since the duty to pay the rent at that time was apparent and the matter was not, legally, one admitting of a choice upon the tenant's part.
Final order affirmed, with costs.
McADAM, J., concurs.
Final order affirmed, with costs.