
    Louis Sherry, Respondent, v. Arthur B. Proal, Appellant.
    First Department,
    April 16, 1909.
    Landlord and tenant — oral lease — intention to execute written lease — insufficiency of parol agreement.
    The rule that where a tenancy can lawfully he created by parol and the parties have agreed upon all the terms, nothing being left to be done except to reduce them to writing, the letting will be deemed complete although the written lease is never executed, is applied with caution.
    Where in a conversation between a tenant and the landlord’s agent as to the execution of a new lease, the term, rent and subject of the lease were settled, but there was no agreement as to when and how the rent should be paid or what covenants and conditions should be incorporated in the lease, no complete and enforcible lease in prcesenti was made.
    The fact that the agent told the tenant to sign a lease, already sent by the landlord, but which the tenant claims he never received, did not amount to an agreement to abide by the terms of that instrument, nor does the fact that at the time the tenant had a written lease of the premises raise a presumption that the new lease was to be in the same form.
    Where the question as to the making of a lease is one of intent, the fact that the parties intended to have a written agreement is strong evidence that the oral agreement was not intended to be binding,
    Clarke, J., dissented.
    Appeal by the defendant, Arthur B. Proal, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rew York on the 26th day of October, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of October, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Martin W. Littleton [Frederick Allis with him on the brief], for the appellant.
    
      Franklin Bien, for the respondent.
   Scott, J.:

The plaintiff sues and has recovered a judgment for one-half year’s rent, from October 1,1906, of an apartment in an apartment hotel. Defendant had occupied the apartment for a number of years under a written lease, which had been renewed from year to year by written renewals, the last renewal expiring on October 1, 1906. In March of that year plaintiff and defendant had a conversation respecting the renewal of the lease, and after much discussion, a tentative agreement was made for a new lease for five years at an increased rental. This lease was never executed, and plaintiff makes no claim under it. Plaintiff testifies that he prepared and signed duplicate copies of such a lease, and directed his bookkeeper to send them to defendant for signature. There is no evidence that they were ever delivered to defendant, or at his apartment or his office, and he denies that he ever received them. Soon after this conversation both parties went abroad, leaving the matter of a new lease undetermined. Defendant returned to Hew York in July, and then took up the matter of a new lease with one Flauraud, the manager for plaintiff, who was still abroad. The question at issue between the parties is a very narrow one, and arises out of this conversation between Flauraud and defendant, the former testifying that a definite and precise agreement was then made for a new lease for one year, and the latter testifying that he offered to take a lease for a year, but that Flauraud declared that he had no authority to make such a lease. Although the parties to this conversation differ as to its ultimate outcome there is no reason to believe that either is consciously and willfully testifying falsely, but rather that they honestly differ in their recollections as to what was finally said. A jury has twice decided to accept Flauraud’s statement, and we shall undertake the consideration of the case from the standpoint of the accuracy of his recollection. His statement of the conversation is as follows : “ Mr. Proal came in, and after passing the time of day and asking about how he was, and so on, I asked Mr. Proal if he would send me the lease that Mr. Sherry had sent him for signature, that his lease had been signed by Mr. Sherry. I said for Mr. Proal to return me the leases that Mr. Sherry had signed, to me, with his signature attached, in order to complete the leasing of the apartment. Mr. Proal said he had not received them. I told him that if he looked in his apartment or at his office down town he probably would find them. After a little more conversation on the matter he said, How, Flauraud, I don’t like that lease. I want you to change that lease for me. Well, I said, what do you want me to change? Well, he said, I want you to make my lease the same as the old lease was; that is, I want the five years with the option of one year at a time, at the same rental as the first year, that is $14,000. I said to Hr. Proa], Don’t ask me to do a thing of that kind. Yon talked that matter over with Hr. Sherry and it has all been settled, and you know Hr. Sherry does not want to give any options at all. How, I said, I will do anything for you, but I can’t do that. So after a little while, further talk and conversation, he said, Well, give me a one year’s lease, * * * says he, send me down the lease. I says, Ho, it is not necessary ; you have got those ; just strike it out and put one year instead of the five. That was all that was said.”

It is apparent from this statement of the conversation, accepting it as accurate, that both Flauraud and Proal expected and intended that the oral agreement then arrived at should subsequently be embodied in a formal written lease. The plaintiff recognizes this, and places his light to a recovery squarely upon the rule, which is well established and often enforced, that in a case wherein, under the Statute of Frauds, a tenancy can lawfully be created by parol, and the parties have orally agreed upon all the terms, nothing being left to be done except to put them in writing, the letting will be deemed to be complete although the stipulated written lease should never be executed. This well-recognized rule is, however, to be applied with caution, and is never applied unless it clearly appears that every material term of the contract was in fact agreed to, and that nothing remained for future negotiations and agreement. So we find in a great majority of the cases in which the rule has been applied that the meeting of the minds has been evidenced by letters or other writings, which have shown beyond dispute just what was agreed to. (Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209; Peirce v. Cornell, 117 App. Div. 66.) Where the question is, as in the present case, one of intent, it has always been recognized that the circumstance that the parties intended to have a written formal agreement is strong evidence that the oral agreement was not understood or intended to be binding. (Bryant v. Ondrak, 87 Hun, 477, citing Brown v. N. Y. C. R. R. Co., 44 N. Y. 79; Franke v. Hewitt, 56 App. Div. 497.) In Arnold v. Rothschild’s Sons Co. (37 App. Div. 564; affd., 164 N. Y. 562) the parties had negotiated through a broker for the lease of certain premises. These negotiations had resulted in a note from the broker to defendants saying: “ I have closed the lease for you as directed, with Mr. Arnold, of store and has. 472 Broadway for one year from February 1st, 1892, at §5,000.00 rental, payable monthly.” To which defendants had replied: “Yours received. Mr. B. is satisfied.”

It was in contemplation that a formal written lease should be executed. Like the defendant in the present case, the Bothscliilds never took possession, but sent word in January that they could not use the store. As in the present case, no attempt was made to procure the execution of a written lease, but suit was brought when the first installment of rent fell due. The case, therefore, much resembles the case at bar, being if anything stronger in favor of the plaintiff, because the letters left no doubt as to what was agreed to. The court said: “ It is claimed by the appellants that if all the terms of the agreement were finally concluded between the parties so that nothing remained except to reduce those terms to writing and execute the writing, the contract was completed, although it was understood between the parties that a formal lease should be executed. It is quite true that where a valid contract has been made by which the parties under stand that their rights are fixed, such a contract may be enforced, although there may be a stipulation of the understanding between them that a more formal contract shall be executed. * * * But it is essential to the enforcement of such an informal contract that the minds of the parties should have met upon all the terms as well as the subject-matter of the contract; and if anything is left open for future consideration, or if the subject-matter does not appear to be understood alike between the parties, the informal paper cannot form the basis of an agreement. * * * As every one knows, a formal lease contains many stipulations which are not found in the contract growing out of the conversations which Taneubaum had with these parties. All those stipulations have an important effect upon the rights of the respective parties; and when it was understood that such a formal lease should be executed, it would be necessary that the preliminary conversations should be quite full and explicit as to the terms of the contract before the parties should be held to a completed contract in the absence of what they had agreed should be the final evidence of such a bargain.” In Brown v. N. Y. C. R. R. Co. (44 N. Y. 79) the subject of contract was a railroad. Negotiations were had looking to a perpetual lease to defendant with the right to purchase at a given pl’ice. The time when the rent should commence, its amount, when payable, the place of payment and the sum to be paid by defendant in order to become the owner instead -of a perpetual lessee were agreed upon. The time when the defendant might purchase was not fixed, and the form and covenants of the lease and some other details were left for future determination. The court held that no valid enforcible agreement had been shown, although so far as the leasing part of the agreement was concerned nothing was left open except the form of the lease. Commissioner Earl quotes with approval from Ridgway v. Wharton (6 H. L. Cas. 268, 304) as follows : u The circumstance that the parties do intend a subsequent agreement to be made is strong evidence to show that they did not intend the previous negotiations to amount to an agreement.” An agreement to be finally settled must comprise all the terms which the parties intended to introduce into the agreement. An agreement to enter into an agreement upon terms to be afterward settled between the parties is a contradiction in terms. It is absurd to say that a - man enters into an agreement till the terms of that agreement are settled. Until those terms are settled he is perfectly at liberty to retire from the bargain.” Applying the principle enunciated in these-and many other cases to the particular case at bar, and still accepting as accurate Flauraud’s version of the conversation between himself and defendant, it will be seen that the verbal agreement testified to fell far short of a lease complete in all its details. The only thing actually discussed and agreed upon at that interview was the term for which the lease was to be made. We may assume that the subject of the lease, the apartment then-held by defendant, and the amount of rent which had been agreed to between him and plaintiff were also thoroughly understood. But beyond this nothing was discussed and nothing agreed upon. Especially was there no agreement as to when and how the rent should be paid or what covenants and conditions should be incorporated into the lease. Flauraud says that he told defendant to sign the lease already sent to him by plaintiff merely changing the term contained therein. This did not amount to an agreement to abide by the terms of that document for defendant then declared and now declares that he never saw it, and there is no evidence that it was delivered to him. It has been held that a written agreement to give a lease in the same manner that my other leases are drawn to correspond with the present lease when it expires ” did not amount to a lease, but merely to an agreement to make one. (Becker v. De Forest, 1 Sweeny, 528; Franke v. Hewitt, supra.) The fact that the defendant at the time of the conversation held a written lease of the apartment raises no presumption of an agreement that the new lease should be in the same form. The old lease was not referred to in any way, and we know that in two vital particulars it differed from the lease the parties were attempting to negotiate, to wit, the rental and the terms. Whether or not the written lease, which plaintiff says he prepared, contained other differences from the old lease, we have no means of knowing. What we do know is that it was the evident intention of both parties that a formal written lease should be executed, and that there were many details which it would be proper to incorporate in such a lease, which were not even discussed, much less agreed to, between Flauraud and defendant. As was said in Sourwine v. Truscott (17 Hun, 432): Unless the lease in all its terms was agreed upon, then there was no binding contract which could be enforced at law. * * * If any of the conditions to be contained in the lease were left indefinite and to be fixed only when the lease should be prepared, there was no such contract as was binding on the parties at law. Whatever may have been the probability that the parties would not ultimately disagree upon the form of the lease, or however unimportant to the lessees, the stipulations omitted to be specified might be regarded.” (See Booth v. Bierce, 38 N. Y. 463; Cutts v. Guild, 57 id. 229; Fullerton v. Dalton, 58 Barb. 236.) The conclusion to which this consideration of the authorities leads us is that, upon the plaintiff’s own showing, no valid lease, enforcible at law, was ever made, and there is strong reason for'believing that the plaintiff did not at the time, or for a considerable time afterward, consider that an actual lease had been made. A few days after the conversation with Flauraud, and on July 24,1906, defendant wrote to him that he had decided not to renew his lease. It is true that, assuming a definite lease to have been made, Flauraud was under no legal obligation, to answer this letter by asserting that it was too late to withdraw, but, in view of the past relations between the parties, it would, have been natural to have done so if he really understood that a final lease had been definitely agreed upon. No reply whatever seems to have been made to this letter until September eighth, when plaintiff wrote to defendant rehearsing the latter’s negotiations, or, as they are termed, “agreements,” both with plaintiff and Flauraud, stating that, in relying upon them, the season for renting had been allowed to pass, and appealing to defendant, as a “matter of justice and honor,” to restore the apartment and permit plaintiff to rent it for defendant’s account. This is not the language which one would expect from a landlord who believed that he held a valid, enforcible lease from a-solvent tenant. We have considered the question raised by the appeal solely upon the evidence offered by plaintiff accepting the same as accurate. From that evidence, as we read it in the-light of well-settled legal principles, there was a failure to prove a valid, complete, enforcible lease in prcesenti.

There was, therefore, nothing to submit to the jury, and the motion for the dismissal of the complaint should have been granted. The judgment and order appealed from must, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson, P. J., Ingraham and Houghton, JJ., concurred; Clarke, J., dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  