
    Job M. Wilbur, Respondent, v. James R. Collin and William E. Congdon, Appellants.
    
      Lease —complete except its reduction to writing—taking a nm lease from, the landlord merges the former lease — sale of the land by the landlord—pcorty.
    
    Where parties agree orally as to the terms of a lease of premises for one year, and nothing is left to be done except to reduce the agreement to writing, the contract is complete even though the writing is never drawn.
    Where the parties, who have acquired the existing rights of a former tenant, make a new lease with the landlord, they must be deemed to have surrendered the rig-hts which they acquired from the former tenant, and. to hold their possession thenceforth under the new lease.
    Where an action is brought to recover rent and the defendant interposes a general denial, he cannot show under it that, prior to the termination of the lease, the plaintiff had conveyed the premises without reserving the rent.
    Nor can he, under such an answer, prove that the wife of the plaintiff was a ' joint owner of the premises and had not been made a party.
    Appeal by the defendants, James R. Collin and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 1st day of October, 1895, upon the verdict of a jury rendered after "a trial at the Washington Circuit, and also from an order entered in said clerk’s office on the 26tli day of September, 1895, denying the defendants’ motion for a new trial made upon the minutes.
    
      James C. Rogers, for the appellants.
    
      J. M. Whitman, for the respondent.
   Parker, P. J.:

The plaintiff in this action sues for a balance which- he , claims to be clue from the defendants for rent upon a verbal lease,, of a building in the village of Sandy Hill for the term of one year, expiring December 4, 1894.

There is. a sharp conflict of evidence between ' the parties, as to whether any bargain was completed for the leasing of the building' the defendants claiming that it was left ojien to be reduced to writing, and that subsequently the plaintiff- insisted upon terms which were never talked over between them, and ..to which -they could not agree, and the plaintiff claiming- that on or about December 1, 1893, there was a complete verbal bargain between them, whereby the defendants agreed to rent the premises for $300- per year, and upon certain other specified terms fully stated and settled between them.

- The defendants occupied the building from the 4th of December, 1893, until April 1, 1894, and paid to plaintiff rent at the rate of $300 per year up to that date. They then surrendéred to him the possession of the premises, and refused to pay anything more.

The defendants explain their possession and the payment of rent .as follows: They claim that, at the time they applied to plaintiff for a lease, they had just jiurchased a stock of groceries that was in it .from one Fancher, who was then occupying the building,, and had also taken from him, by parol agreement, an assignment of his lease which would expire on April 1, 1894; that they applied to plaim tiff for the ■ purpose of getting a new lease for a longer period ; that when they found they could not agree with plaintiff upon the terms of a lease> they continued in possession under the Fancher lease until April first, and then surrendered the premises.

The rent due from Fancher was at the rate of $200 per year, and the defendants claim that their payment to plaintiff of $25 per month up to April first, instead of to Fancher, at the rate of $16.66 per month, was made for the purpose of avoiding any trouble with plaintiff. ■

The court left to the jury the question whether the bargain between the plaintiff and the defendants was fully made and completed as he claimed it was. That is, whether the defends ants did agree, -upon terms fully stated and understood by them, to lease from the plaintiff for the term of one year the premises at the agreed, sum of $300, and the court also properly instructed the jury as to the rule requiring the minds of the parties to meet, and to thoroughly understand each other, in order to make a bargain complete.

Under this charge the jury found a verdict for the plaintiff for the full year’s rent, less what had concededly been paid. A careful examination leads us to the conclusion that we should not disturb the verdict of the jury, on the ground that it is not sustained by the evidence in the case.

Of course, if the minds of the parties did not meet as to all the essential particulars of the contract, there was no leasing. Of course^ if a written contract was subsequently to be draw'll up, and it was left until then to agree upon some of its terms and conditions, there was no leasing. But if the terms were all agreed upon, and nothing more was to be done, except to reduce them to writing, the contract was complete even though the writing was never drawn. (Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209.)

The difficulty with the'appellants’ argument is, that the plaintiff’s evidence is clear that the minds of the parties did so meet, and there is much evidence in the case to sustain that claim. Evidently some sort of a contract was made, which the parties proposed to have reduced to writing, and the question is whether the one the defendants had drawn, or the one plaintiff had drawn, correctly expressed the bargain made.

It was peculiarly a question for the jury, who saw all the witnesses' ; whose attention was called to the precise point to he decided by them,, and who were, therefore, as well prepared as we are to determine from the conflicting evidence before them, which party was giving the true version of the transaction. Newman v. Wilson, 78 Hun, 295; Thompson v. Vrooman, 21 N. Y. Supp. 180; Fowler v. Van Natta, 71 Hun, 343; Devlin, v. Greenwich Savings Bank, 125 N. Y. 756.) Hor do we think that if there was an outstanding right in Faneher to occupy the premises until April .first, it was any legal objection to the making of such a contract between those parties as the plaintiff claims was made.

According to the defendants’ statement, when they applied to plaintiff for a lease, for the term of one year or more, they had already bought out Fancher’s interest, and, inasmuch as they then represented him, they could surrender or waive any. .rights which his lease gave, and were in a situation to make such a new lease, to¡ commence at that date, as they chose to make. If they did in fact then make a new lease, to commence then, it would seem clear that they surrendered: any rights they acquired tinder Fancher’s lease, and held their possession thenceforth under the new leasing. (Coe v. Hobby, 72 N. Y. 141-146.)

If this view is correct, none of the exceptions to the charge, or to the rulings, concerning the Fancher lease are ground '.for a new trial. Concede that such a lease existed and that-it was assigned to the defendants, as they and Fancher claim, and yet it furnishes no defense if the .new agreement was made upon which this action is-based. The whole case seems to turn upon- the qtiestion of fact. whether a new lease was taken by the defendants, as plaintiff claims; and we cannot disturb .the finding of the jury .upon that question;

The offer by the defendants to show that, in October prior to the termination of- the lease, the plaintiff had conveyed . away the premises, without reserving the rent for the same, was properly excluded. The answer is a mere general denial, and under it such a defense asthe.offer contemplated cotild not be shown. (McKyring v. Bull, 16 N. Y. 297, 304, 307; Linton v. U. F. Co., 124 id. 533-536.)

For the same reason, the defense that the wife, of the plaintiff was a joint owner of the premises and had not been made a party to the action was not before the court, and not available to the-defendants in this action. (Abbe v. Clark, 31 Barb. 238; Conklin v. Barton, 43 id. 435.)

■ We discover in the record no error for which this judgment should be reversed.

Judgment' and order appealed from affirmed, with: costs.

All concurred, except JIbbeick, J., dissenting.

Judgment and order affirmed, with costs.  