
    HEILMAN v. LAZARUS.
    
    
      N. Y. Court of Appeals ;
    
    
      November, 1882.
    Ejectment.—Lease containing provision por Sale.—Contract, when not incomplete or inchoate.—Trial. —Exceptions to Charge.—Evidence; Burden oe Proof; Shifting.—Costs ; Basis for extra Allowance.
    A lease contained a provision for the sale of the premises to the lessee for a specified price, “as per special agreement signed in the same time with this lease; a sale ,of the property voids the lease, and can be effected any time during the term of the lease upon two months previous notice,” &c. The lessee testified that no other or further paper was executed at the same time, and no other was presented or shown to him. Held, in ejectment by such lessee, that the lease was admissible in evidence, as tending to show, with the other evidence, the making of a complete and perfect contract, the existence of which was a question of fact for the jury.
    
      It seems, that if a further paper specifying details and conditions of the contract of purchase had been prepared and presented at the time of the execution of the lease, which the lessee had declined to sign until consulting a lawyer, and later refused entirely—as was testified to by defendant’s witnesses-—there would have been no meeting of the parties’ minds and no completed contract.
    An exception to a portion of a charge to the jury must accurately state the proposition excepted to.
    A charge to the jury that “it is needful for the defendant to establish this defense to your satisfaction, because the plaintiff produces a lease which is in form complete and signed by the parties,”—Held, not error, as in effect charging that defendant had the burden of the issue; but being in effect an instruction that plaintiff having made a prima facie case, defendant must meet it, which was correct.
    In an action of ejectment by a lessee, where there is no evidence of the value of the possession over and above the amount of font, reserved by the lease, there is no basis for the computation of an extra allowance, and the granting thereof is error.
    Appeal from a judgment of the general term of the supreme court for the first judicial department affirming a judgment in favor of plaintiff entered upon a. verdict, and from an order affirming an order granting plaintiff an extra allowance.
    The action was brought by Moses Heilman against Isaac Lazarus to recover the possession of certain premises in the city of New York, which defendant claimed, under a lease thereof executed by Gustave Eamsperger, under whom defendant claimed through a subsequent lease.
    Further facts sufficiently appear from the opinion.
    
      Lewis Sanders (Sigismund Kaufman, attorney), for appellant.
    
      George F. Langbein, for respondent.
    
      
       Compare Lazarus v. Heilman, 11 Abb. N. C. 93.
    
   Finch, J.

We do not discover in the lease under ■' which plaintiff claims to obtain possession of the property in question the element of uncertainty upon which the defense is primarily founded. It purports to let the premises in dispute to the plaintiff for the term of two years from the ensuing first day of May, at the yearly rent of $700 for the first year and $1,000 for the second, to be paid in equal monthly advance payments, and contains the ordinary and usual provisions for the protection of lessor and lessee. It has, however, a further provision looking to a purchase of the property by the lessee, which is claimed to be imperfect and incomplete as an agreement of sale, and to infect with its own uncertainty the entire contract.

. The stipulation thus criticised is in these words, viz.: “ the party of the first part agrees to sell to the party of the second part, and the party of the second part agrees to buy from the party of the first part the house and lot herein leased for the sum of $8,000 lawful money of the United States as per special agreement signed in the same time with this lease; a sale of the ‘ property voids the lease, and can be effected any time during the term of the lease upon two months’ previous notice given to the party of the first part by the party of the second part of his intention to effect the sale.”

The operation of this provision is claimed to be rendered doubtful and uncertain by its reference to a “special agreement” contemplated to be concurrently executed. The argument at our bar developed a question of construction. The respondent contended that the “special agreement” referred to was not a separate and distinct contract, but the agreement for purchase and sale contained in the lease, and put stress upon the words “signed in,” as well as the fact that the lease was drawn by the lessor himself, who was a German, somewhat awkward in the use of an unfamiliar language and wholly inexperienced in the drawing of legal papers. The appellant, however, insists upon the more natural and obvious meaning, that the “ special agreement ” contemplated, was one fixing the minor details of the contract of sale and to be concurrently executed, so that the signing of the lease was merely provisional and conditional, and until the further instrument was executed no complete contract was made. But the lease as signed contained within itself, even as it respected the contract of sale, a complete and perfect agreement, if no reference had been made to a further settlement of details, or if such settlement and modification were waived. One agreed to buy and the other to sell. The price was fixed at $8,000.

It was to be paid in lawful money of the United States, and in legal effect, at the time of the consummation of the sale by delivery of the deed. The time of conveyance and payment was fixed ; it was to be during the continuance of the lease and upon two months’ previous notice; but within those restrictions was at the option of the lessee. When made, it avoided the lease. The agreement, therefore, in and of itself had every element necessary to its completeness, and if, at the time it was signed, no further agreement was in any manner, made or presented, claimed or insisted upon, the natural inference would be, either that none was contemplated, because both parties understood the contract as respondent reads it, or that it was entirely waived, the parties resting upon the paper signed as a complete execution of their contract. Whether a contract was in fact executed or only partially and incompletely executed, was, therefore, the question litigated, and to some extent it was a question of fact. The paper actually signed was admissible of course for it tended to show the making of a complete and perfect contract, and was supplemented by the oath of the plaintiff that no other or further paper was executed at the same time, and no other was presented or shown to him. - In this respect he was corroborated by two other witnesses present at the execution of the lease.

At this point the defendant moved for a nonsuit upon the ground that no completed contract had been executed and the plaintiff had not bound himself to buy. What we have said indicates that the motion was properly denied, for upon the facts it was competent for the jury to find that no further agreement was contemplated at the time of the execution of ' the lease.

The defendant then gave rebutting evidence. He called the owner and lessor, who testified that a further paper, specifying details and conditions of the contract of purchase, was prepared and presented at the time of the execution of the lease ; that plaintiff declined to sign it until he had consulted a lawyer, and later refused entirely. If this was true, the minds of the parties never met, and no completed contract was executed.

The evidence having closed, the court charged, as matter of law, that the agreement signed was of a character sufficient, “ if perfected,” to be valid and effectual, but whether or not a complete and perfected agreement was in truth, made, was a question of fact for the jury. Apparently the learned counsel for the defendant meant to except to the proposition of law-laid down by the court. If he had done so, the exception would have been unavailing, for it is certainly true that the instrument on its face contained every necessary element of a complete and perfect contract. But the exception was inaccurate. It was taken to so much of the charge “as states that the lease produced by the plaintiff is a complete and executed instrument as appears upon its face.” The learned judge nowhere spoke of it as “ complete and executed.’’ He described it as complete on its face and “signed, ” but whether “ executed ” asa complete and perfected contract, was precisely the question submitted to the jury.

In the progress of the charge the court stated to the jury the evidence given on the part of the defendant tending to show thq,t a separate special agreement was prepared, presented for execution, and refused, and said, “If but one of these papers was executed, and under this understanding as detailed by Mr. Ramsperger, the other, for any reason whatsoever, was left unexecuted, the two papers together making the agreement, there would have been no complete agreement between (he parties as to these premises. ” The learned judge, however, further said, adverting to defendant’s version of the facts, It is needful for the defendant to establish this defense to your satisfaction, because the plaintiff produces a leas,e, which is, in form, complete and signed by the parties.” It is claimed that this proposition was erroneous and was reached by defendant’s exception “ to that part of the charge which says that the burden of proof is on the defendant to impeach the lease.”

Nothing is said in the charge as to the, burden of proof, or about impeaching the lease. The issue, as to which the burden of proof was on the plaintiff, was that of title—of right to the possession of the land, and that burden remained with him to the end. But the court was not speaking of that, nor of the burden of proof in connection with it. Attention was being directed to a conflict of evidence upon a question of fact, arising under the main issue, and the language used can fairly be said to mean no more than that the plaintiff having made out a primafacie case the defendant must give some evidence to rebut it which the jury believe, or the prima facie case must prevail. In such cases it is sometimes, and perhaps inaccurately said, that the burden of proof is shifted. In Heineman v. Heard, 62 N. Y. 448, it was observed that by such expression is only meant “ that there is a necessity of evidence to answer the prima facie case or it will prevail.” And the same thing was said in Lamb v. Camden & Amboy R. R. Co., 46 N. Y. 271. Substantially that, and no more than that, was the evident meaning of the court in the present case, and we do not think that it was intended or can be fairly construed to mean that the burden of the issue tendered by the complaint was upon the^defendant. On the contrary, we think its fair construction is that the burden of proof was on plaintiff ; that he had borne it so far as to have made out ajprima facie case, and that must prevail unless the defendant gave some evidence tending to rebut it which the jury could believe. The language of the charge might possibly bear a stronger construction, but even then could not be justly said to have related to the burden of proof upon the issue of title. We do not think the jury were in any manner misled.

But the defendant also appeals from the order which gave to the plaintiff an extra allowance of $75. The subject-matter involved was the right of possession of the property for two years subject to the rent reserved. Whether that right had any money value was not shown. If the plaintiff succeeded, he gained in money value only what the right of possession was worth over and above the rent which burdened it. If he lost, that, and that only, was the measure of his loss. No basis, therefore, existed for the computation of an extra allowance, and the order should be reversed (People v. Albany and Susquehanna R. R. Co., 45 N. Y. 499 ; Coates v. Goddard, 34 Super. Ct. [J. S. S.] 118).

The order, therefore, cannot be sustained and must be reversed, but the judgment.should be affirmed.

All the judges concurred, except Tract, J., absent.

Judgment affirmed, with costs, and order for extra allowance reversed, without costs.  