
    Lawrence, Plaintiff and Appellant, v. Woods, Defendant and Respondent.
    1. Where, during a term for years, created by a written and sealed lease, it is agreed, verbally, between lessor and lessee, that the lessee shall leave certain temporary buildings, put by him on the premises but not attached to the freehold, remaining on the premises at the expiration of the lease, (the lease having then several years to run,) and the lessor agrees that the lessee shall be discharged and freed from paying rent for the two quarters next ensuing such agreement as a consideration for so doing, and a suit is brought to recover said two quarters’ rent, before the expiration of the lease; such agreement is no defense to the action, although said buildings are then on the premises.
    2. Such an agreement, (not being in writing,) is void by the statute of frauds, as it is not to be performed within one year from the making thereof; and also because it is for the sale of personal property of the value of over $50 and there was no delivery of any part of it, nor any payment of any part of the contract price.
    (Before Hoffman, Pierrepont, and Moncrief, J. J.)
    Heard, December —, 1858;
    decided, March 12, 1859.
    This is an appeal by the plaintiff, (William Beach Lawrence, Jr.,) from a judgment against him, entered upon a verdict in favor of the defendant, (John Woods,) rendered upon a trial had before Mr". Justice Woodruff and a jury, on the 13th of May, 1858.
    The action is upon a sealed lease executed by both parties, dated September 1, 1854, by which the plaintiff demised to the defendant “ all that inn or tavern called the Upper House, situate at the High Bridge, in the town of West Farms, county of Westchester, and State of New York, with the land around the same and the outbuildings thereon,” &c., for the term of seven years from the 1st of August, 1854, at the yearly rent of $600, 'payable in equal quarterly payments in advance; which rent the defendant covenanted to pay accordingly.
    The action was commenced in February, 1857, to recover for the quarter’s rent ($150) commencing November 1, 1856, and also for the quarter’s rent ($150) commencing February 1,1857.
    The defense set up in the answer is, that the defendant “ erected temporary buildings or sheds” on the demised premises, “not attached to the freehold, for the better carrying on of his business,” and afterwards, and about the 1st of November, 1856, being about to tear down and remove said temporary buildings, “ the said plaintiff and this defendant entered into an agreement whereby this defendant sold and transferred to said plaintiff the said buildings, and said plaintiff then and there became the purchaser thereof, and upon the following considerations, that is to say: The said plaintiff did give to this defendant, and this defendant did accept, the use and occupation of said premises for the term of six months from the 1st day of November, 1856, to the 1st day of May, 1857, free and discharged from the amount of rent reserved for said premises in said lease, and the said plaintiff did then and there accept and this defendant give the said building's as and for the rent of said premises for the time last hereinbefore mentioned.”
    
      At the trial, the lease was read in evidence. It contained a clause giving the right to reenter, on failure by the defendant to perform any of the covenants on his part; also, a covenant by defendant not to assign or underlet, and to occupy the premises as a public house or tavern.
    Only one witness was examined: his testimony is as follows,viz.:
    Thomas E. Jones, a witness for the defendant, testified: That he knew the parties; that he was at an interview between them in the fall of 1856 ; Mr. Lawrence came to Woods’ store, and Woods asked Lawrence if he could not take those premises off his hands; Mr. Lawrence said he could not, but if Woods would give him a bill of sale of all his furniture and fixtures he would take them off his hands; on the second interview, Woods asked the same question; Lawrence said he would give nim three months’rent free; the last time he came, Woods told him the roads were blocked up with snow, and it was impossible to do anything in the winter, and that he had spent a good deal of money on the premises; Woods asked him if he would not give him the place from 1st November to 1st May rent free; Woods told him of the expense he had been put to in fitting it up, erecting out-buildings, bowling alley, shooting gallery, &c.; Lawrence said if he would leave those out-buildings there, at the expiration of his lease, he would give him the six months’ rent from 1st November, 1856, to 1st May, 1857; Mr. Woods accepted the offer, and told Mr. Lawrence he would leave them there in consideration of that; the out-buildings- were bowling saloon, shooting gallery, ice-house and shed for horses; they were put up by Woods, who paid for them; %I should not think they were permanent erections; neither shooting gallery, nor bowling saloon nor ice-house had any foundation; the shed had not; they are set just oh the ground; Mr. Lawrence never called after that for the rent to my knowledge; nothing was said about a bill of sale to my knowledge at the last interview; plaintiff said, “ If you will leave those buildings there, at the expiration of your lease, I will give you the six months’ rent from the 1st day of November, to 1st May, in consideration of your leaving them there;” those are all the words.
    The witness being cross-examined, testified as follows: The last and each interview took place in Pearl street, at Mr. Woods’ store in Pearl street; the premises are at High Bridge, Westchester county; the buildings were not in view of the parties; this conversation was in the fall of 1856; the third conversation was more than two weeks after the first; Mr. Woods said the roads were blocked up by snow and other obstructions; I should not think this conversation was later than October, 1856; I think it was in October, 1856; the occasion of the first" conversation was Mr. Lawrence calling for his rent; the third time he called to know whether defendant would.accept his (Lawrence’s) proposition about giving a bill of sale; I think it was in October; I am as sure of that, as I am of anything else I have testified to; in the first conversation Lawrence said he would take a bill of sale of defendant’s furniture and fixtures and cancel the lease, he would give up the rent; Woods had a tavern there ;• the buildings were appurtenant;, in the third conversation Woods made a proposition; Woods asked Lawrence if he would not give him the place from 1st November to 1st May, free of rent; I cannot call to mind all that passed; those are the important facts which I remember; Lawrence said he would give him the place rent free till the 1st of May, in consideration of his leaving those buildings there; Lawrence used the words “ in consideration did not hear Lawrence say the lease had several years to run; did not hear him say anything about bill of sale of furniture at the third interview; there was no writing executed; nothing more than words passed between the parties.
    The direct examination being resumed, the witness farther testified: I could not state what took place at the commencement of the first interview; I did not hear the first part, only the last part; I did not hear anything said on subject of rent at the first interview nor at any súbsequent interview; those buildings were still there, when I was at the High Bridge two months ago.
    And, thereupon, the parties closed their evidence, and the plaintiff’s counsel prayed the Court to instruct the jury as matter of law:
    1st. That the agreement set up was invalid under the statute of frauds:
    Because, it was not in writing, and was not by its terms to be performed within a year. Which the Court refused to charge, and the plaintiff’s counsel excepted.
    
      2d. That under the same statute, the agreement not being in writing, it was not binding, because the articles were not within view of the parties at the time of the alleged agreement, which the Court refused to charge, and the plaintiff’s counsel excepted thereto.
    3d. That there was no accord and satisfaction proved; which the Court refused to charge, and plaintiff’s counsel excepted.
    4th. That the execution of the lease, the tenancy under it, and the accruing of the rent being proved, the plaintiff is entitled by law to a verdict for the amount claimed; which the Court refused to charge, and the plaintiff’s counsel thereupon excepted.
    And to the decision of the Court in respect to each of the points so' presented by plaintiff’s counsel, he then and there excepted.
    The Judge then charged the jury as follows:
    The theory of the defense is that the defendant, in the fall of 1856, was about to remove buildings, a bowling-alley, shooting-gallery, shed, &c., from the demised premises, and that Mr. Lawrence, to induce him to suffer them to remain, agreed to allow him the six months’ rent from the 1st of November to the 1st of May. If any agreement of this description was made, the jury have to determine this question: Was it to apply to the six months in question of to the six months at the end of the lease, or ending the last 1st of May ?
    . The Judge further charged the jury that they were at liberty to consider all the probabilities of the case, and whether it was probable that the six months’ rent mentioned was the first six months or the last, when it should be known that the buildings remained at the expiration of the lease, and the manner in which the witness stated the conversation, and they would not overlook the discrepancies in his testimony. He had stated the conversation differently. The Judge further charged that if the buildings, as they are called, were not attached to the soil, but merely rested on the surface, and could be removed without disturbing the soil or anything attached thereto, and in order to prevent their removal the plaintiff agreed that if the defendant • would suffer them to remain and leave them at the expiration of the lease, he would accept them in discharge of the rent in suit, and the parties both agreed to that arrangement, and the buildings have remained there ever since, the plaintiff was not in a condition to maintain the action at this time and cannot recover.
    But if the agreement was merely that for so leaving the buildings the defendant was to be allowed six months’ rent at the end. of the term, it constitutes, no defense to this action. The plaintiff in such case would satisfy such an agreement by remitting the last six months’ rent when the defendant had fully performed, and the plaintiff could see that the buildings were in fact left at the expiration of the lease.
    To so much of the charge as is included in the last above par agraph but one, commencing “if the buildings” and ending "cannot recover,” the plaintiff’s counsel excepted.
    The jury thereupon rendered a verdict for'the defendant.
    Judgment having been entered on the verdict, the plaintiff appealed from it to the General Term.
    
      James W. Gerard, for appellant.
    I. The whole case involved a mere question of law, assuming the evidence of Jones to be either as given on his direct or his cross-examination; and the cause should not have been submitted to the jury at all, except to direct them to render a verdict for the plaintiff for the amount of his demand, with interest
    H. The agreement attempted to be made out was clearly within the statute of frauds, and there never was a case where the propriety of that statute was more transparent than in this ; an attempt to defeat a claim evidenced by writing and by seal, under a conveyance of real estate, by loose swearing to a yerbal agreement, improbable, if not absurd in its very terms. (2 R. S., 317, 4th ed., § 3.)
    I. If anything, it was an agreement not to..be performed within a year. No bill of ¡sale or present delivery of the articles was pretended, and they were not to be handed over until the expiration of the lease, which would not be until 1st August, 1861.
    2. Or it was a contract for the consideration of $300, for the sale of goods and chattels of the value of more than $50 not in view, and of which there was no delivery. (Shindler v. Houston, 1 Comst., 261.)
    III. The agreement pretended was indefinite and incomplete as to what goods were to be sold or delivered, and also as to what rent was to be given up, and from its incomplete and indefinite character in judgment of law amounted to no agreement at all. It was impossible, at the end of the lease, for Mr. Lawrence to have gone to the premises and to have made a selection, good to pass title in law, of the specific things, to which he was entitled. (7 Wend., 404; 14 id., 31; Pars. Merc. Law, pp. 48, 49, p. 48, note 2.)
    The things to be given up, and which six months’ rent, the first or the last six months of the lease, rendered the contract uncertain.
    IV. The whole charge of the Judge was based upon a state of facts set up in the answer as important, but of which not one particle of proof was given—that is, “ that the defendant was about removing the fixtures from the premises when the pretended agreement was made.” The Judge confounded the answer with the evidence. The exception, therefore, to the part of the Judge’s charge, relating to this matter, was well taken.
    V. A written lease can only be surrendered in whole or in part by an agreement in writing, signed by the parties. The evidence of Jones, if he proves anything, proves a surrender of the lease for six months while the lessee remains in possession, and a new agreement for a six months’ lease, all by parol.
    VI. The covenant in the lease to pay rent can only be satisfied by one of three things: 1st, by actual payment; 2d, by a release; 3d, by an accord and.satisfaction. The agreement set up, amounts to neither. (Bump v. Phœnix, 6 Hill, 308.)
    There was no actual payment; there was no release, because the rent was not yet due; there could be no accord and satisfaction, because there was no delivery.
    VII. If a clear, explicit agreement was proved, such agreement would be no bar to this action, not being either payment .or. a release, or an accord and satisfaction. The defendant’s only remedy would be to sue the plaintiff for a breach of the agreement, leaving each party to his right of action on their respective mutual promises. (19 Wend., 516; 23 id., 342.)
    VIH. The verdict is against the law and the evidence, and a new trial should be granted.
    
      
      J. R. Marvin, for respondent.
    I. The agreement proved in this case to have been made by the parties in this action was, in all respects, valid and binding in law unless it was within the statute of frauds.
    H. The agreement was not within the statute of frauds, for the reasons:
    I. It was not an' agreement that by its terms was not to be performed within one year from the making thereof. It was to be performed, and was, in fact, performed, at the time of making the'agreement. The rent in suit was forgiven, and the outbuildings became the absolute property of the landlord at the time. The tenant parted with all his interest in the buildings which, at best, was a qualified interest, to wit, the right of removal during the term of the lease.
    2. - Admitting- that the parties intended that the buildings should remain the property of the tenant until the expiration of the lease, then the agreement was not within the statute. It might have been fully performed within the year by a cancellation of the lease within that time by mutual consent, or by the reentry of the landlord, as provided by the lease. (10 J. R., 244; 10 Wend., 426; 15 id., 336; 5 Hill, 200; 13 Barb., 493; Skinner, 353; 3 Burr., 1278; 5 Barb., 469.)
    3. Admitting that the tenant was to perform his part of the agreement on the 1st day of May, 1861, then the agreement was not within the statute, because the landlord performed his part of the agreement at the time of the making thereof, to wit: he canceled the rent in suit.
    The statute does not apply when all that is to be performed by one- party, is to be performed within a year from the making of the contract. (Bracegirdle v. Heald, 1 Barn. & Adol., 727; Donellan v. Read, 3 id., 899; Cherry v. Hemming, Court of Ex., 1849; 10 Me., 476; 10 Gil. & Johns., 404; 1 Ga., 348; 7 Ala., 161; 4 Md., 476; 3 Mo., 241; 13 Barb., 493.)
   By the Court—Pierrepont, J.

If the defendant' has any defense at all in this case, it rests entirely upon the verbal contract attempted to be proven by Jones, who states:

“Plaintiff said, if you will leave those buildings there at the expiration of your lease, I will give you the six months’ rent from the 1st day of November to 1st May, in consideration of your leaving them there; those are all the words.”

The witness says, this was the rent from November 1, 1856, to February 1st, 1857, and that the agreement was made in October, 1856; and that he is as sure that it was made in October, 1856, as of anything he has testified to.

As there is no evidence of any agreement about the matter of the temporary buildings except the testimony of this witness; if any such agreement was made at all, it was the one above stated, and was made in October, 1856; consequently it was an agreement made before any part of this rent fell due, (although payable in advance.) There was no delivery of anything, no bill of sale, no release of rent to become due in future, no writing an'd no payment. And the expiration of your lease,” about which the witness speaks, does not happen by its terms until August 1st, 1861, and there is no intimation in the evidence that any delivery of these buildings was contemplated until the expiration of the lease. There is no suggestion in the evidence that the defendant had a thought of removing the buildings until the end of the term, or that any such consideration moved either party to the alleged agreement. If any contract was made of the nature stated by the witness, it is very singular that there was no written memorandum of it, and serves to show.how salutary is the statute of frauds, which was not only framed to prevent frauds and perjuries, but also to guard against, the mistakes, misunderstandings, forgetfulness and misapprehensions of honest men.

The agreement which this witness relates was not one to be performed within one year, and is void by the statute of frauds.

If, moreover, it is claimed that the buildings were personal property, then both they and the rent amounted to more than $50, and as the rent was not due, and as there has been no payment or .delivery, and no writing, the alleged' contract is void under the 3d section of the statute of frauds. (Shindler v. Houston, 1 Comst., 261.)

The rent accrued under the covenants of a lease under seal; since due, there has been no release or agreement to release, and no payment, nor has there been any accord and satisfaction. All that is shown for the purpose of defeating the covenants of this sealed instrument’ is a verbal promise made by the plaintiff -in October, 1856, that if the defendant would, at the expiration of the lease in August, 1861, leave the buildings on the premises, he might have the rent accruing in November, 1856, and February, 1857, as a consideration for so doing. Such verbal agreement is not sufficient to prevent the plaintiff’s recovery in this action. (Delacroix v. Bulkley, 13 Wend., 71.)

New trial, with costs to abide the event.  