
    Samuel G. Jeffers et al., App’lts, v. Constantine Bantley, Impleaded, with another, Resp’ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1888.)
    
    Statute of frauds—Contract condemned by—When money paid UNDER, ETC., CALÍ BE RECOVERED.
    If one pays money, or renders service, or delivers property upon an. agreement condemned by the statute of frauds, he may recover the money paid in an action for money had and received, and he may recover the value of his services and of his property upon an implied assumpsit to pay, provided he can show that he has been ready and willing to perform the agreement and the other party had repudiated or refused to perform it. So held in a case where the defendant counter-claimed, in an action for rent, the value of repairs made before plaintiffs rescinded an oral agreement to allow for repairs made to premises leased for a term of three years.
    Appeal by the plaintiffs from a judgment of the Chemung county court, on an appeal thereto from justice’s court, for a new trial, and from an order of the Chemung county court, denying a motion for a new trial upon the judge’s minutes.. Trial was had with a jury.
    
      Wilmot E. Knapp, for app’lts; Jacob Schwartz, for resp’ts.
   Follett, J.

Appeal from a judgment of a county court, entered on a verdict upon a retrial of an action appealed from a justice’s court, and from an order denying a motion for a new trial, made on the minutes.

The appeal book not disclosing the grounds upon which the motion for a new trial was made, nor that the case contains all of the evidence, the appeal from the order (if appealable, Reilley v. D. and H. C. Co., 102 N. Y., 383; 2 N. Y. State Rep., 419) does not present the question that the verdict is contrary to the evidence, nor any of the alleged errors of the jury (Hinman v. Stillwell, 34 Hun, 178; Cheney v. N. Y. C. and H. R. R. R. Co., 16 id., 415; Porter v. Smith, 35 id., 118); but the questions raised by exceptions may be reviewed upon the appeal from the judgment.

February 20, 1884, the parties executed a lease under their hands and seals by which the plaintiffs leased to the defendants certain real estate and machinery for three years from April 1, 1884, for the annual rent of $420, payable in equal bi-monthly payments, to wit: Seventy dollars April 1, 1884; seventy dollars June 1, 1884, and so on to the end of the term. The lease did not bind the lessors to make any repairs, except to furnish sufficient ceiling for a shop, which defendants were to put on. April 1, 1884, the defendants entered into possession and thereafter paid rent, as both agree, at the rate of $425 per annum, or seventy dollars and eighty-four cents bi-monthly, in advance. The rent due April 1, 1884, was paid in cash. The rent due June 1, 1884, was paid fifty-nine dollars and eighty-four cents in cash and eleven dollars in repairs. The rent due August 1, 1884, was paid sixty-four dollars and seventy-nine cents in cash and six dollars and five cents in repairs. The rent due October 1, 1884, was paid in cash. It does not appear whether the rent due December 1, 1884, February 1, 1885, and April 1, 1885, was paid.

This action was brought to recover seventy dollars, the rent due by the terms of the written lease, June 1, 1885. The defendants admit that the rent due on that day has not been paid; and allege that February 24, 1884, the day after the execution, of the written lease, an oral contract was made between the parties by which, in consideration of the payment of five dollars per annum more rent, the plaintiffs agreed to make all necessary repairs on the property, or permit defendants to make such repairs and deduct the cost from the rent; and that in the spring of 1885 the defendants necessarily expended eighty-two dollars and four cents in repairs. That the repairs made were necessary and that the sum expended was reasonable' were not disputed on the triah The facts in the issue were: First, was the oral agreement alleged in the answer made between Bantley, one of the lessees, in behalf of both, and Samuel G. Jeffers, one of the lessors, in behalf of both ? Second, did Asenath W. Jeffers, the other lessor, learn of the oral agreement so made, prior to April 1, 1884, and assent to it ? Both facts were found in favor of the defendant.

The evidence is undisputed that all payments were made to Samuel G. Jeffers or to Losie, plaintiffs’ agent, and it was not claimed that any sums had been paid to Mrs. Jeffers, and the fact called for by the seventh interrogatory: was entirely immaterial.

Samuel G. Jeffers testified that $425 was agreed upon as the annual rent before the execution of the written lease, and that thereafter there was no conversation about raising the annual rent five dollars. In reply to this, the defendants were permittéd to prove by the draughtsman of the lease, that he read it'to the parties, and it was not suggested by either, that the amount stipulated, $420, was incorrect. It was not error to receive this evidence of the draughtsman.

The only other question presented upon this appeal is, Did the court err in receiving evidence of the oral agreement, and after its existence was found by the jury, in holding that the defendants were entitled to counterclaim under it, the amount necessarily expended for repairs?

It is urged: (1) That the oral agreement was insufficient to effect a surrender of this lease for three years, under the sixth section of the first title of the statute of frauds. (1 B. S., 134) And that by the terms of the oral agreement, it was not to be performed by the defendants within one year from the making thereof, and for that reason was within the first subdivision of the second section of the second title of the statute of frauds, and void. Also, that the lease under seal could not be modified before condition broken, by an executory oral contract.

None of these questions seem to be an obstacle to the defendant’s right to be allowed for these repairs.

If one pays money, or renders service, or delivers property upon an agreement condemned by the statute of frauds, he may recover the money paid in an action for the money had and received, and he may recover the value of his services and of his property upon an implied assumpsit to pay, provided he can show that he has been ready and willing to perform the agreement, and the other party had repudiated or refused to perform it.” Day v. N. Y. C. R. R. Co., 51 N. Y., 583, 590; Reed Stat. Fr. § 627. In this case the defendant made the repairs claimed for before the plaintiffs rescinded, or repudiated the oral agreement, which the jury found was made. It is true that Losie testified that when he was called upon to make repairs, he examined the written lease, and notified the defendants that the plaintiffs were not required to make repairs. On the contrary, Bantley testified that he told Losie the roof leaked and needed repairing, and Losie said he would do it; and that he did not say to Losie or Buchanan that the plaintiffs’ obligation to make repairs arose from the written lease.

The defendants in this action having performed their part of this oral agreement, had a right to rely upon the plaintiffs carrying it out, unless the plaintiffs unequivocally rescinded it and gave notice of the recision; which was not done prior to making the repairs. Upon this ground, if upon no other, the judgment should be sustained.

The judgment and order are affirmed, with costs.

Hardin, P. J., and Martin, J., concur.  