
    Hodesh v. Hallerman.
    (Decided January 9, 1933.)
    
      Mr. Lewis Levy, for plaintiff in error.
    
      Mr. Robert N. Gorman and Mr. Stanley A. Silversteen, for defendant in error.
   Hamilton, J.

This case is here on error to a judgment rendered by the court of common pleas of Hamilton county, reversing a judgment of the municipal court of Cincinnati.

In the municipal court Walter Y. Hallerman brought suit against Jeanette Hodesh, plaintiff in error here. The amended bill of particulars, among other things, recites that in the latter part of 1925 Jeanette Hodesh was the owner of certain garage premises located on Gilbert avenue, city of Cincinnati, Ohio; that on November 15,1925, he, Hallerman, entered into a written lease with the defendant, Jeanette Hodesh, for a term of six months, with a privilege of renewal for four and one-half months (years?), commencing December 1, 1925. He complains in the bill that Hodesh has refused to give possession of the premises under the lease and has refused to accept rent, thereby breaching the contract of lease.

In his claim for damages for the breach plaintiff recites that he entered into a contract for the purchase of the garage business from one A. E. Short, who was in possession of the premises at the time under a lease, and alleges the breach by Hodesh; that as a result of the failure of the defendant to permit plaintiff to occupy said premises, plaintiff was forced to pay Short the sum of $776.90, and was compelled to expend $200 for attorneys’ fees and expenses, all of which were due to the failure of the defendant Hodesh to carry out the terms of the written lease entered into with the plaintiff.

The defendant, Jeanette Hodesh, answered, admitting she owned the garage premises in question, and denied the other allegations in the amended bill of particulars. This, of course, denied the execution of the lease.

The lease was introduced in record, and provides, among other things: ‘‘ The lessee shall have the right and privilege of renewing said lease for a period of four years and six months beginning at the expiration of the lease, provided that the lessor is the owner of said premises at that time, at a rental of six hundred dollars per month.”

The lease is. signed and executed by Walter Hallerman and Isadore Hodesh.

The record discloses that the defendant, Jeanette Hodesh, did not know of the execution of the lease by Isadore Hodesh, and as soon as the lease was calle'd to her attention she repudiated same and refused to give possession under it.

The claim of the plaintiff was that Isadore Hodesh was the husband of Jeanette Hodesh, managed the garage, attended to the renting of the same, and collected the rents, and that the lease was executed by Isadore Hodesh for the undisclosed principal, and sought to show by oral evidence that Isadore Hodesh executed the lease for an undisclosed principal, Jeanette Hodesh, and that she was therefore estopped from denying the validity of the lease as her own. The trial court excluded, in the main, evidence tending to prove such agency, and at the close of the case rendered judgment in favor of the defendant, Jeanette Hodesh. Hallerman prosecuted error to the court of common pleas, which court reversed the judgment of the municipal court, apparently on the question of agency. From that judgment Hodesh prosecutes error to this court, seeking a reversal of the judgment of the court of common pleas and an affirmance of that of the municipal court.

There are several specifications of error presented. Among them is the claim that the statute of frauds presents an absolute bar to the claim that there is any validity in the lease, and that by reason thereof the question of agency in the form presented is not available.

We will first take up the question of the statute.

Section 8510, General Code, provides: “A deed, mortgage, or lease of any estate or interest in real property, must be signed by the grantor * *

It must be borne in mind that the lease in issue was not signed by the owner of the property, Jeanette Hodesh.' To overcome this obstacle, >'as heretofore stated, Hallerman seeks to invoke the rule of estoppel as against her by virtue of the fact that the lease was signed by Isadore Hodesh; that he being the husband of Jeanette Hodesh and the manager of her property, she would not be heard to deny the lease.

Section 8512, General Code, provides: “A power of attorney for the conveyance, mortgage, or lease of any estate or interest in real property, must be signed, attested, acknowledged, and certified in the same manner as deeds, mortgages, and leases.”

We have therefore the situation of an agent signing the lease in his own name, without any written authority therefor. This situation furnishes a complete bar to any claim as against the owner of the property, in this case Jeanette Hodesh.

It is suggested in the brief that Section 8517, General Code, is a saving clause, in that the lease is a temporary lease, and Section 8517 provides: “Nothing in this chapter contained shall affect the validity of any lease *- * * for any term not exceeding three years * *

And it is argued that the lease being for six months, with the privilege of renewal for four years and six months, does not take the lease out of the class of temporary leases, but that it remains a lease for six months. This contention is answered in the case of The People’s Building, Loan & Savings Co. v. McIntire, 14 Ohio App., 28, at page 31, wherein this court held: “The option provided in the lease for four consecutive years must be held to be ‘an interest in real property,’ and would bring the lease within Section 8510 of the statutes, requiring acknowledgment and attestation of the same.”

This is further supported by the case of Toupin v. Peabody, 162 Mass., 473, 39 N. E., 280, where in the course of the opinion the court states: “A lease for five years, with the right to have a renewal for five more, is as much within the mischief which the statute seeks to remedy as a lease for a term of ten years, and the reasons for requiring the latter to be recorded apply equally to the other, so far as the renewal term is concerned.”

Our conclusion is that the lease is within the terms of Section 8510, General Code, requiring the same to be signed by the grantor, or her agent, under power of attorney executed in accordance with Section 8512, General Code.

There being no binding lease upon Jeanette Hodesh, the owner of the property, she was not and could not be liable for a breach.

Since this determines the case, the other questions are not considered.

The judgment of the court of common pleas will be reversed and that of the municipal court affirmed.

Judgment reversed.

Ross, P. J., and Cushing, J., concur.

On Application for rehearing.

Hamilton, P. J.

On the application for a rehearing of this cause, the court has reconsidered the question of the defense of the statute of frauds.

It is urged by counsel for the defendant in error in their application for rehearing that the term of the lease is severable, thereby making it a lease for a period of six months, with the privilege of renewal on condition that the owner was the owner of the property at the expiration of the six-month period.

The court in the former opinion held that the lease was for a five-year term, but, passing that question, it held that the lease was not properly executed by the agent, for the reason that there was no power of attorney authorizing the agent to execute the lease.

It is also claimed that if the lease was defectively executed, it should operate as a contract to make a lease and be enforceable in equity, and that the rights for damage for the breach would still lie. On this point we have the case of Lithograph Building Company v. Watt, 96 Ohio St., 74, 117 N. E., 25. The third paragraph of the syllabus in that case is: “A lease, defectively executed, will in equity be treated as a contract to make a lease, but if executed by one acting as agent not actually authorized by the owner to enter into such contract, the instrument is ineffective as a contract to make a lease and not enforceable against the owner.”

It will be noted that there is nothing in the record to show actual authorization by the owner to enter into such contract. It is claimed that the fact that Isadore Hodesh, the husband, managed the property and collected the rents, would estop the plaintiff from denying the lease. This question is determined in the sixth paragraph of the syllabus in Lithograph Building Company v. Watt, supra, which holds that the collecting of rentals and the ejection of lessee for nonpayment of rentals does not estop the owner from questioning the validity of the lease. If this would not estop the plaintiff, much less would it estop her when the rentals were collected by another party.

There is no written authorization whatsoever from the owner to the party executing the lease. The lease was executed in the personal name of the claimed agent. There is no indication that he was acting for her, and there is no power of attorney authorizing him to make any lease or to do anything concerning the property.

As stated in the opinion in the instant case, the statute provides that: 11A power of attorney for the conveyance, mortgage, or lease of any estate or interest in real property, must be signed, attested, acknowledged, and certified in the same manner as deeds, mortgages, and leases.”

If the lease should be construed as a temporary lease, this section would require the authority of the agent to be executed as required by the formalities under the statute.

While it is true in the Lithograph Company case that the fact that the power of attorney was not recorded did not invalidate the lease as between the parties, it was held that the want of acknowledgment rendered the lease executed by the agent invalid.

Furthermore, in the case of Norris v. Dains, 52 Ohio St., 215, at page 225, 39 N. E., 660, 49 Am. St. Rep., 716, it was held that it was an indispensable requisite, to give validity to a deed executed by an attorney, “that it should be made in the name of the principal;” that the agent cannot in his own name, nor as a proper act, execute the instrument.

We have in this case the execution of a lease by Isadore Hodesh in his own name, and as his proper act, without written authority, of property in question which he did not own. It follows that there are two reasons why the statute of frauds is a good defense in this action: First, That there was no power of attorney, as required by the statute; and, second, that the lease was executed in the name of an individual who did not own the property, and was therefore invalid.

We therefore adhere to our former decision.

Former judgment adhered to.

Ross and Cushing, JJ., concur.  