
    GRACIE BRUDER v. MAYER WOLPERT.
    
    October 18, 1929.
    No. 27,502.
    
      E. J. Grover, for appellant.
    
      W. B. Anderson, for respondent.
    
      
       Reported in 227 N. W. 46.
    
   Stone, J.

After a directed verdict for defendant, plaintiff appeals from the order denying her motion for a new trial.

The action is for rent claimed to have accrued under an oral lease of a residence. It did not appear from the complaint that the alleged'lease was for more than one year. The evidence for plaintiff is that in August of 1927 the parties made an oral agreement that defendant “was to rent the property” until September 6, 1928, when plaintiff expected to lose title by reason of the expiration of the year of redemption from a foreclosure and her failure to redeem. Defendant denies that agreement and defended upon the ground, as stated in his answer, that he “was a tenant at will of said premises from June 1, 1927, to and including November 30, 1927;” that on October 31 of that year he “served notice in writing that he would vacate said premises and terminate his tenancy at Avill” on November 30, 1927; and that he did vacate accordingly. Plaintiff admits the payment of rent for the period of his actual occupancy.

The record does not disclose precisely the ground upon which the motion for a directed verdict was granted. It is sought to be sustained here for the reason, among others, that the alleged oral lease, being for a term of more than one year, is within our statute of frauds [G. S. 1923 (2 Mason, 1927) §§ 8459, 8460] and therefore void. That position is unassailable, and on that ground alone the verdict for defendant was rightly directed.

Our statute is not construed as one prescribing a mere rule of evidence but rather as precluding the substantive right of action upon an oral contract within it. Therefore this defendant, having by answer denied the making of the contract set up in the complaint, properly invoked the statute although he did not plead it. Hanson v. Marion, 128 Minn. 468, 151 N. W. 195; Bean v. Lamprey, 82 Minn. 320, 84 N. W. 1016.

Order affirmed.  