
    SAMUEL JONES v. EBENEZER K. SHERWOOD.
    1. A tenant under a written lease for a year, after the expiration of the year, filed a bill praying the specific performance of an alleged parol agreement by the landlord for a lease for a second year, and an injunction restraining proceedings at law, instituted by the landlord, to turn him out of possession. The bill stated that the complainant could make no proof, at law, of the parol agreement, and prayed a discovery of it.
    2. The answer denied the alleged parol agreement.
    3. The injunction was dissolved, and the bill dismissed.
    4. If the answer to a bill for discovery and for injunction against proceedings at law, denies the matters of which discovery is sought, and there is no Other ground of equity jurisdiction in the case, the injunction will be dissolve^ and the bill dismissed.
    The bill states that on March 20th, 1846, the complainant entered into an agreement in writing, with the defendant, to lease from the defendant certain premises containing a grist-mill, sawmill and two dwelling-houses, for .the term of one year, from April 1st, 1846.
    That on or about March 25th, 1846, he called on the defendant and requested him to extend the term to three years, when the defendant replied that the complainant might have the premises for the term of three years from the said 1st of April, 1846, on the terms mentioned in the said lease. That the complainant then requested that an agreement in writing should be entered into to that effect, or that the said lease might be altered so as to read for three years, when the defendant replied that the complainant should have the premises for three years, and that it made no difference whether it was in writing or not. That, to the complainant’s knowledge or recollection, no person was present at the said conversation.
    That, in pursuance of said indenture and of said verbal agreement, the complainant, on or about April 1st, 1846, entered upon the premises and opened a store for the sale of merchandise, and commenced driving the mills, with the understanding and expectation that he had the privilege, by virtue of the said verbal agreement, of holding the premises for three years.
    That on the 6th January, 1847, he called on the defendant for the purpose of having the said further agreement, or some other additional agreement, reduced to writing, when the defendant, after some conversation on the subject, agreed to rent the premises to the complainant on the same terms mentioned in the indenture of lease, for one year, to oommenee on the 1st of April,
    1847. That the complainant then requested that the term might be for two years instead of one, according to the understanding and agreement made subsequent io the execution of the indenture of lease, when the defendant said he was desirous of selling the premises, and (hat, if he should receive a satisfactory offer, he would like to have the privilege of doing so, and (hat, ibr this reason, he was unwilling to lease them for two years, and at the same time the defendant urged the complainant to purchase the premises, it was, however, finally agreed and arranged between them, that the complainant should have the premises for one year from the 1st of April, 1847, on the terms mentioned in the indeni lire of lease, without reservation, and also for the year succeeding, to commence on the 1st of April,
    1848, if the defendant did not before that time sell or got an opportunity to sell the premises; and it was then also further agreed, that if the defendant, before that time, should receive an offer for the premises which he was willing to accept, the defendant was to give the complainant the refusal of the premises at the same price; that, at the time of the said last-mentioned conversation and agreement, the defendant said that he would come up to the residence of the complainant, on or about (he said 1st of April, 1847, if the weather and traveling were good, and execute the said new lease; that the complainant does not recollect or know that any person, except it be the wife of the defendant, was present or heard the conversation and agreement above set forth, on the 6th of January, or that ho can prove the same.
    That on or about March 12th, 1847, the complainant was informed by one Holden that he, Holden, had made a conditional agreement' with the defendant for the purchase of the premises, aiid was to take possession of the same on the 1st of April, 1847, and requested the complainant to give up the possession at that time.
    
      That the complainant, acting on the faith of the said verbal. agreement, made on said 5th of January, 1847, made his arrangements to occupy the premises and drive the mills and continue the store another year; and during the months of January and February, 1847, increased his stock of goods and merchandise, by adding thereto goods of the value of $700, and also bought about 2000 bushels of grain, of the value of $1500, a part of which grain was, by contract, not to be delivered till about the 1st of May, 1847, for the purpose of grinding the same in said grist-mill during the summer of 1847; that he has repeatedly applied to the defendant to comply with his said verbal agreement made January 6th, 1847, and execute a lease pursuant thereto.
    That the defendant, on or about the 1st of April, 1847, sent a notice to the complainant, requiring him to give up possession of the premises, and informing the complainant that his term had énded, and on or about the 10th of April, 1847, procured a summons to be issued by'Robert T. Wilson, Esq., a justice of the peace, against the complainant, under the act entitled, “ A supplement to an act concerning landlords and tenants,” passed March 4th, 1847, for that, as in said summons is alleged, the complainant holds over, and continues in possession of said premises after the expiration of his term, and after demand and notice in writing given for the delivery of the possession thereof to the defendant, which summons was returnable April 22d, 1847, and summoned the defendant forthwith to remove from the said premises, or show cause on the return day, why the possession should not be delivered to the defendant, and was served on the defendant, and returned, and that, on the return day, the proceedings thereon were adjourned to May 6th, 1847, and that the defendant threatens and intends, in violation of his said agreement, to proceed, under the said act and summons, to turn the complainant out of possession.
    That the defendant pretends that sometime in March, 1847, he received an offer from said Holden for the purchase of said premises, for $4000, and that he informed the complainant of this, and offered the premises to him for that sum, and that the complainant had refused to purchase, and that thereby all verbal agreements were abrogated ; whereas, the complainant charges that the defendant never informed him that he had been offered $4000 for the premises, and that he would sell them to the complainant for that sum, or that he, the defendant, had had any offer that he was willing to accept.
    That on or about the 19th of March, 1847, the complainant, with one Samuel Willet, called on the defendant, and the complainant then, offered to give the defendant $4000 for the premises, which sum, as it was admitted at that time by the defendant, he bad been offered and was willing to accept; when the defendant said to the complainant he would come up the next week, on Thursday, and give the complainant an answer, which he afterwards declined to do.
    The bill prays that the said verbal agreement may be specifically performed, and the defendant be decreed to execute to the complainant a lease of said premises for one year from April 1st, 1847, according to the terms of the said verbal agreement; the complainant offering to execute a counterpart thereof, and in all other respects to perform his part of the said verbal agreement; and prays an injunction against the said proceedings at law.
    The injunction prayed was allowed on the 2d of June, 1847. The defendant put in his answer.
    He admits the indenture of lease set forth in the bill. He says he has no knowledge or information, other than that received from the bill, that the complainant, after the execution of the lease and before he took possession of the premises, was dissatisfied with the terms and conditions of the lease, or that he wished to extend the time thereof.
    He denies that the complainant, on or about March 25th, 1846, or at any other time between the day of the execution of the said lease and the day when the complainant took possession of the premises, called on him and requested him to extend the said term to three years, or words to that effect, and that he then replied to the complainant by saying that he, the complainant, might have the said premises, for and upon the same rent and terms as mentioned in the said indenture, for the period of three years, commencing on the 1st of April then next, and that the complainant then requested that the defendant and the complainant should enter into an agreement in writing to that effect, or that the said indenture might be altered so as to read for the term of three years, instead of one year, when this defendant replied by saying that the complainant should have the premises for the term of three years, and it made no difference whether it was in writing or not, or words to that effect, as is untruly stated in the bill. But, on the contrary, he says that after the execution of the lease, and before the complainant took possession, he held no conversation with the complainant relative to extending the time of the said lease for the period of three years, or for any other period, or relative to altering or changing the terms and conditions of the said lease in any way or manner whatever; nor did this defendant, during that time nor since, make any agreement, verbal or otherwise, with the complainant, to extend the term of the said lease for three years or for any other period.
    He denies that he entered under the said verbal agreement as set forth in his bill, or under any other verbal agreement whatever; and he avers and charges that, on the said first of April, he delivered the possession of the premises to the complainant, and the complainant entered thereon, under and by virtue of the said indenture of lease, and for the term of one year only; and that there was no understanding or agreement between the said parties relative to extending the term for which the complainant should hold the premises beyond the time mentioned in said lease; and that the said indenture of lease was, on the day the complainant took possession, in full force and effect, not having been altered, modified or extended by any subsequent agreement or understanding between the parties thereto.
    He says that at the time of the execution of the said lease, and from that time forward, he was anxious to sell the premises, and that it was known to the complainant and the neighborhood that the property was in the market for sale; and he avers that if the complainant had applied to him to extend the time of said lease, he would have refused to do so, on the ground that it would interfere with the sale, by putting it out of his power to deliver possession at the expiratiou of the year.
    He admits that on the 6th of January, 1847, the complainant called at his house, and held a conversation with him respecting the renting or purchasing the property, but which conversation is untruly slated in the bill. He says the complainant then called on him, and said he had called for the purpose of renting the mill for another year ; that he replied, that he wished to sell the property, and had some expectations of doing so uefore the 1st of April, and would, therefore, decline renting the property at that time, and advised the complainant if he wanted die property, he had better buy it; that the complainant replied that he would rather purchase than rent, and inquired what he asked for the property, and he told him $5000. The complainant said he thought it rather too much, but said that if defendant got an offer which lie was willing to take, he wished the defendant to inform him and give him the refusal, at the price offered, which the defendant said he would do. That, as the complainant was about leaving, he again repeated that he would either purchase the property or rent it; and that he, the defendant, agaiu replied, that his object was to sell, if he could, and that he would see him again on the subject, or words to that effect. He avers that this is the true conversation, in words or effect, which then and there took place between them respecting the renting or selling the said property.
    He denies that the complainant, when he called, as aforesaid, and had said conversation with the defendant, stated or intimated to the defendant that he had called for the purpose uf having the said further agreement, or some other additional agreement reduced to writing, for the better security and safety of the complainant, or words to that effect. He also denies that he, then and there, or at any other time before or since, agreed and consented to rent the premises to the complainant upon the same terms and conditions as mentioned in the then subsisting lease, for and during the term of one year, to commence on the 1st of April then next, or upon any other terms and conditions, or for any other term; but, on the contrary, he then and there declined to make any agreement with the complainant relative to the renting the said property, as hereinabove stated. i
    He also denies that the complainant then and there requested !> iie said térro might be extended for two years, instead of one, according to an understanding and agreement made subsequent to the execution of said indenture of lease j on the contrary, he says the complainant did not, on that occasion, mention or refer to any understanding or agreement made subsequent to the execution of the said lease; nor did he claim or pretend to have any right to hold the premises beyond the term specified in said indenture or lease.
    He also denies that it was then and there, or at any otheij time or place, finally agreed and arranged between them, that the complainant should have the premises, upon the terms and for the consideration and rent mentioned in the then subsisting lease, for and during the term of one year from the 1st of April then next, without reservation, and also for the year succeeding that, to commence on the 1st of April, 1848, provided he, the defendant, did not before that time sell or get an opportunity to sell the premises; but, on the contrary, he says that no agreement whatever was then and there made between them, relative to the renting or leasing the property for any time, or upon any conditions whatever; neither was there any agreement or arrangement whatever between them relative to the sale of the property, except the voluntary promise of the defendant, in case he had an offer for the property, to give the complainant the refusal, as before stated.
    He denies that he did then and there, or at any other time, declare that he would come up to the residence of the complainant, on or about the 1st of April, 1847, if the weather and traveling were good, and sign and execute a new lease, or make any other declaration of the like kind or nature.
    He says that, on or about March 11th, 1847, one Jos. A. Holden, who lived 25 miles from the mill property, called on him and said he was in search of mill property, and, having understood that the defendant’s property was for sale, he had been to look at it, and wished to know what he asked for it. Thif, defendant told him it was for sale, and asked him $5000 for it. Said Holden offered $4000, and he finally agreed to sell it to. Holden for that sum ; and he and Holden then agreed on the terms and conditions of the sale. That Holden then proposed that articles should then be drawn and signed, when he, recolfooting that he had given his word to the complainant to give him the refusal, stated the fact to Holden, and requested a postponement until he could give the complainant the refusal; that to this Holden assented, and it was then and there agreed between this defendant and Holden, that he, the defendant, would, the next day, March 12th, 1847, send his two sons, William and Augustus, (defendant being prevented from going by lameness,) with full power and instructions to inform the complainant of the price which had been offered for the property, as aforesaid, and that the complainant could have the property for the said sum of $4000; and if the complainant refused or declined the purchase, then the said Augustus, as the attorney-in-fact of this defendant, would enter into articles with Holden to convey the property to him, for .the sum and on the terms and conditions which -had been verbally agreed upon and settled between this defendant and Holden, as aforesaid; and Holden agreed to meet the said sons of the defendant at German Valley, where the property is situated, on the said 12th of March, for the purpose aforesaid.
    He says that, though not bound to give the complainant the refusal, the promise todo so being verbal and without consideration, yet, being willing to keep his word, he did, on the said 12th of March, send his son to German Valley, with full authority and instructions as aforesaid, and for the purposes aforesaid; and that his son William did, on that day, call on the complainant, on the property, and told him he had been sent by his father to inform him -that this defendant had an offer for the properly, that Mr. Holden had agreed to give $4000 for it, and that the complainant could have it for that price, if he wished it, and if not, they would sell it to Holden, to which the complainant, at first, replied that he would give as much as any man intended to pay for the property, and then said that if Holden had offered that sum, he, the complainant, would not make any offer.
    That on the defendant’s declining to purchase, afterwards, on the said 12th of March, his said son, as the attorney-in-fact of this defendant, entered into certain articles of agreement with said Holden, under their respective hands and seals, whereby this defendant, for $4000 to be paid in three equal payments, the first to be made on the 1st of April then next, and the others in one and two years thereafter, agreed to convey the property, by warrantee deed, to Holden, on or before the 1st of April then next, with a covenant that Holden should and might take possession on the said 1st of April; and the parties to the said agreement bound themselves for its performance in the penalty of $500.
    That on the said 1st of April, Holden tendered himself ready, &c.
    He denies that the complainant did, at any time, by himself or his agents, apply to him to comply with the said pretended verbal agreement, and to execute to him a lease pursuant to the said verbal agreement, alleged by the complainant to have been made on the 6th of January, as is untruly stated in tlie bill; and he avers and charges, that from the said 6th of January until the defendant agreed to sell to Holden, the complainant did not claim, set up or pretend to the knowledge or belief of the defendant, that there was any such agreement or agreements as he has set forth in his bill; neither has the complainant, since he was informed of the agreement to sell to Holden, requested him to comply with any such verbal agreement, or offer to comply with it on his part; but, on the contrary, in all their communications since that time, the complainant has urged and requested him to annul his said agreement with Holden, and to sell the property to him, the complainant.
    On this answer, a motion was made to dissolve the injunction.
    
      J. W. Miller, for the motion.
    He cited 2 Green’s Ch. 429 ; 3 Ib. 434, 446; 1 John. Ch. 211; 1 Halst. Dig. 536; Cooper’s Eq. Pl. 315, 316; 3 Bro. Ch. 205; 1 Saxton 428, 476, 488.
    
      J. S. Hager, contra.
    
    He cited Story’s Eq. Pl., § 35,852—3—4; 3 Green’s Ch. 553.
   The Chancellor.

The complainant, by the bill, alleges a parol agreement for a lease for a second year, and states that? be cannot defend himself against the defendant’s proceedings at law to turn him out of possession, because he has no proof of the parol agreement. He, therefore, by bill in this court, calls upon the defendant to discover the parol agreement; and prays that the defendant may be decreed to perform the same, by executing a lease to him for the second year; and prays an injunction, in the meantime, against the defendant’s proceeding at law to turn him out of possession.

The defendant, by his answer, denies that he ever made the alleged parol agreement.

If the complainant had proof of a parol lease for a second year, he could defend at law. Having none, he came here, by bill, for discovery, and fails to obtain it. It is manifest that this court’s jurisdiction of the case is at an end.

The injunction will be dissolved, and the bill dismissed.

Order accordingly.  