
    DE GRAZIA v. ANDERSON.
    No. 701.
    Municipal Court of Appeals for the District of Columbia.
    Nov. 10, 1948.
    Joseph J. Lyman, of Washington, D. C. (Anthony L. Montaquila, of Washington, D. C., on the brief), for appellant.
    Herman Miller, of Washington, D. G, for appellee.
    Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.
   CAYTON, Chief Judge.

A tenant brings this appeal from a judgment of possession based on a verdict directed against him on his opening statement. The property involved is a barber shop of which defendant had been a tenant for many years. Plaintiff sued for possession based on a notice to quit and alleged that defendant was a tenant at sufferance, and such was the claim, plaintiff’s counsel made in his opening statement. Defense counsel, in his opening statement to the jury, said, in part:

“We propose to show that in July of 1946 Mr. Anderson came to the tenant, Mr. DeGrazio, and wanted to raise the rent, that then and there they had an agreement, a definite oral understanding that in consideration of Mr. DeGrazio paying the increased rent Mr. DeGrazio could remain in the premises for the duration of Mr. Anderson’s lease, that is, Mr. DeGrazio would assume the burdens and benefits of Mr. Anderson’s prime lease. * * * Mr. Anderson’s lease terminates next June, 1949, however, there is a provision in that lease which could terminate it in ninety days at the option of Anderson’s lessor. He made these provisions known to Mr. DeGrazio. We will further show that Mr. DeGrazio paid the increase in rent upon Anderson’s representation to him that he, DeGrazio, could stay in the premises as long as Anderson remained, and then, further, we will show that upon that representation Mr. De-Grazio made certain substantial improvements to the premises predicated upon the belief that he would be permitted to stay for the remaining portion of the lease, subject, of course, to the ninety-day provision, whichever terminated first.”

On plaintiff’s motion the trial judge ruled that this statement did not outline a defense, refused to permit any testimony, and directed a verdict for plaintiff.

We have previously said that to decide a case on an opening statement “is an extreme measure and trial judges should invoke it most cautiously, for the opening statement is to be construed liberally and favorably to plamtiff’s case.” We pointed out that “only when it is clear in advance that plaintiff is absolutely precluded from a recovery may the trial court decide the case upon the opening statement.” We quoted from Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 489, 78 L.Ed. 882, as follows:

“Plaintiff is entitled to the benefit of all inferences that may be drawn from his counsel’s statement. To warrant the court in directing a verdict for defendant upon that statement, it is not enough that the statement be lacking in definiteness, but it must clearly appear, after resolving all doubts in plaintiff’s favor, that no cause of action exists.”

Applying these tests here we must rule that in this case it was improper to direct a verdict on the opening statement.

Defendant was asserting an equitable defense. He proposed to prove that he had a definite agreement with the plaintiff-landlord whereby in consideration of an increased rental he could remain in possession of his barber shop for the remainder of the landlord’s term. He stated that the plaintiff’s prime lease with his own lessor ran until June 1949 subject to a provision whereby it could be terminated on ninety days notice. He said he would prove that upon plaintiff’s representations he made substantial improvements to the premises “predicated upon the belief that he would be permitted to stay for the remaining portion of the lease.” This single recital in the opening statement was enough to overcome plaintiff’s motion for a directed verdict and entitled him to present his defense to the jury.

Long ago, in the leading case of Kresge v. Crowley, 47 App.D.C. 13, it was held that despite the statute of frauds one who has been induced to alter his position and make improvements on property based on a parol contract may enforce such contract in the courts. That principle has also been enunciated in later cases. Appellee argues that the statement that the improvements made were “substantial” is incorrect, and that the improvements were in fact “insignificant and inconsequential.” But that raises an issue of fact which had no place on the motion to direct a verdict and has no place on this appeal. Here as in the lower court the statement must be accepted as true and in a light most favorable to defendant.

Defendant also recited that he agreed to and did pay the increased rental exacted of him as a part of the new agreement and continued in possession thereunder. These circumstances alone, if they could be shown to amount to a partial performance, would take the case out of the statute of frauds. The case is still stronger when we view all the elements outlined in the opening statement: (a) landlord’s agreement to give a new and extended term of possession in consideration of an increased rent; (b) the payment and acceptance of the increased rent; (c) the continuation in possession under the new agreement, and (d) the substantial expenditures by the tenant in reliance thereon. These recitals taken together leave no question that the opening statement was a sufficient outline of a valid defense. Naturally we do not venture to say that defendant would ultimately prevail at the hands of the jury or even that his evidence would have been strong enough to take him to the jury. We say only that he was entitled to present his evidence.

Appellee argues that a different result is required by our decision in Ross v. Brainerd, D.C.Mun.App., 54 A.2d 859. That case, however, went to the jury, which in response to a special interrogatory specifically found that the landlord had’made no promise of an extension of a lease; and we said that such finding by the jury made the doctrine of Kresge v. Crowley, supra, inapplicable. We also ruled that the alleged promise was too indefinite to make a contract. Such cannot be said here; at any rate not in the present posture of the case.

Reversed with instructions to award a new trial. 
      
       The case was here on an earlier appeal which we dismissed as being prematurely brought, DeGrazia v. Anderson, D.C.Mun.App., 58 A.2d 306, appeal denied by United States Court of Appeals (No. 9804) May 13, 1948, and in which our decision has no bearing on the issues now before us.
     
      
       Custer v. Atlantic & Pacific Tea Co., D.C.Mun.App., 43 A.2d 716, citing Oscanyan v. Winchester R. Arms Co., 103 U.S. 261, 26 L.Ed. 539; Hornblower v. George Washington University, 31 App.D.C. 64, 14 Ann.Cas. 696; Horne v. Ostmann, D.C.Mun.App., 35 A.2d 174.
      See also Mitchell v. David, D.C.Mun. App., 51 A.2d 375.
     
      
       Code 1940, 12 — 302.
     
      
       Shell Eastern Petroleum Products v. White, 62 App.D.C. 332, 68 E.2d 379; Hoffman v. F. H. Duehay, Inc., 62 App.D.C. 206, 65 F.2d 839; Thalis v. Wurdeman, 73 App.D.C. 322, 121 F.2d 70.
     
      
       Townsend v. Vanderwerker, 160 U.S. 171, 16 S.Ct. 258, 40 L.Ed. 383; Mars v. Spanos, 78 U.S.App.D.C. 230, 139 F. 2d 369; Pannell v. Bayne, 56 App.D.C. 240, 12 F.2d 181; Faunce v. Wood, 55 App.D.C. 330, 5 F.2d 753, 40 A.L.R. 208; Walsh v. Rundlette, 2 MacArthur 114, 9 D.C. 114.
     