
    Steinhardt v. Buel.
    (New York Common Pleas—General Term,
    November, 1892.)
    To constitute a contract, the minds of the parties must concur upon every material term of the proposed agreement.
    A landlord agreed to make certain repairs and supply additional room; the tenant agreed that such being the case, he would renew his lease for another year, but nothing was said as to the amount of rent to be paid. The repairs were made and the additional room tendered to the tenant, but he refused to execute the lease. In an action for rent, held, that the alleged agreement was incomplete and inoperative. In absence of an agreement as to the rent, an inference that it was to be the same as before, was unauthorized, the premises not being the same.
    
      Held, also, that evidence that the landlord intended to give the additional room gratis, was inadmissible to affect the tenant with liability, because such intention was not communicated to him.
    Appeal from judgment of General Term of the City Court affirming a judgment entered on a verdict in favor of plaintiff.
    The essential facts appear in the opinion.
    
      Jacob Steinhardt, for plaintiff (respondent).
    
      G. M. Harwood, for defendant (appellant).
   Pryor, J.

As to every question submitted to the jury upon conflicting evidence, we are concluded by the verdict in the court below; and unless the record discloses some error of law in the disposition of the case, we have no alternative but to affirm the judgment.

At the close of the evidence, the learned counsel for the appellant moved the court to direct a verdict in his favor upon the grounds: First, that the proof was insufficient to establish an agreement of any kind between the parties; and secondly, because if any contract was shown, it was not a present demise, but an executory agreement for a future lease. To the denial of the motion, due exception was taken. After verdict, appellant moved for a new trial, because the verdict was against the law, and upon all the grounds in section 999 of the Code. To the denial of this motion, also, due exception was taken.

To the constitution of a contract, it is an indispensable condition that the minds of the parties concur upon every material term of the proposed agreement. Justice v. Lang, 42 N. Y. 494; Trustees v. Ins. Co., 28 id. 153. Hence, there is no contract “ unless the minds of the parties meet and fix a price.” Booth v. Bierce, 38 N. Y. 463, 466; McCutter v. Mayor, etc., 37 id. 325.

In August, 1890, appellant being tenant of respondent’s flat until the first of October, the parties negotiated for a renewal of the lease for another year. The treaty terminated in an agreement on the part of the respondent that he would make certain repairs and supply an additional room, and on the part of the appellant “ that such being the case, he would take the flat for another year.” Respondent made the repairs and tendered the additional room; nevertheless, appellant refused to execute the lease. But, for the flat so repaired and enlarged, no price was stipulated or suggested even by the parties;. nor was it intimated to appellant that he was to have the repairs and additional room as a gratuity. Respondent’s Witness testified explicitly that nothing was said on the subject of price or compensation for the' succeeding year. In the absence of an agreement as to the rent, no inference is authorized that it was to be the same as before ; because the premises let, were not the same, but were altered by repairs and enlarged by additions.

, “If there has been no absolute agreement made as to all the particulars of the lease, if the minds of the parties have not met as to all these particulars, there is no agreement on which an action will lie.” Sowrwine v. Truscott, 17 Hun, 432, 434.

It results that the alleged agreement was incomplete and inoperative.

Respondent’s proposition that his repairs and additions to the premises made on the strength of appellant’s promise to take the lease, operate as an estoppel to contest the efficacy of the promise as a legal obligation, is without shadow of support either in principle or authority. White v. Ashton, 51 N. Y. 280. The case cited, Mayor v. Huntington, 114 N. Y. 631, is but an application of the familar rule that a tenant in possession, is estopped to dispute the validity of the contract under which he acquired possession.

As there was no evidence to warrant the verdict, it follows that the court erred in denying the motions for a direction and for a new trial.

Another error still, vitiates the judgment. Plaintiff inquired of his witness “ why wasn’t this extra room mentioned in the lease?” Defendant objected to the question but it was allowed, and defendant excepted. The answer being, “because it was intended to give it gratis,” defendant moved to strike it out, and to a denial of the motion duly excepted. As seeming to show an agreement about price and so validating the contract, the answer might have been of momentous materiality in the mind of the jury. But it was not legal evidence, because whether the additional room was to be gratuitous, had not been communicated to the defendant, and indisputably the secret undisclosed intention of one party is not admissible to the other with liability. The evidence being essentially and irremediably incompetent, no specific objection is necessary to subject it to our revision. Quinby v. Strauss, 90 N. Y. 664; Tooley v. Bacon, 70 id. 34; Merritt v. Seaman, 6 id. 168.

The learned counsel for appellant maintains that, in any aspect of the case, the contract in controversy, is but an executory agreement for a lease, and so is incapable of sustaining the present action. We incline to the opinion that the position is tenable, but we need not adjudicate the point, since in any event, the judgment must be reversed.

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

Bookstaver and Bischoff, JJ., concur.

Judgment reversed, new trial ordered, costs to abide event.  