Opinion
No. 5539.
April 6, 1931.
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.
Action to recover rent. Judgment for defendant. Affirmed.
Peterson, Baum Clark, for Appellant.
When the terms of a lease are orally substantially agreed upon and the lessee takes possession of the premises and commences to pay rent, the lease is complete and binding even though the parties contemplated the execution of a written lease later. ( McCulloch v. Lake Risley Co., 91 N.J. L. 381, 103 Atl. 1000; Herb v. Day, 139 N.Y. Supp. 931; Smith v. Ingram, 90 Ala. 529, 8 So. 144; Johnson v. Shelley, 54 Utah, 305, 180 P. 430; Boggs v. Toney, 50 Ind. App. 289, 98 N.E. 306.)
If there is any evidence in the record from which a jury might reasonably find a state of facts upon which as a matter of law the plaintiff is entitled to recover, a verdict should not be directed, but the case should be submitted to the jury. ( Smith v. Marley, 39 Idaho 779, 230 P. 769; Pocatello Security Trust Co. v. Henry, 35 Idaho 321, 27 A.L.R. 337, 206 P. 175; Keane v. Pittsburg Lead Min. Co., 17 Idaho 179, 105 P. 60; Marshall v. Gilster, 34 Idaho 420, 201 P. 711.)
Jones, Pomeroy Jones, for Respondent.
It is almost elementary that where a party declares on a special contract and the contract proved is essentially variant from the one declared on, he cannot recover as the allegations and the proof must correspond. (13 C. J., sec. 911, p. 750; Phillips v. Brown, 21 Idaho 62, 120 P. 454.)
Direction of verdict for defendant is proper where plaintiff fails to adduce evidence of essential allegations. ( Pope v. Coe, 208 Iowa, 759, 225 N.W. 939.)
Where a modification of a contract is relied upon for recovery such modification must be pleaded. ( Milner v. Earl Fruit Co., 40 Idaho 339, 232 P. 581.)
Where a party claims that a contract was completed before a contemplated written draft was signed, the burden of proof rests upon such party to establish such claim by a preponderance of the evidence. ( Elliott v. Pope, 42 Idaho 505, 247 P. 796.)
Where the parties understand that the contract which is to be drawn and signed by both parties will constitute the agreement, there is no binding contract until reduced to writing and signed by both parties. ( Elliott v. Pope, 42 Idaho 505, 247 Pac. 796; Las Palmas Winery Distillery v. Garrett Co., 167 Cal. 397, 139 P. 1077.)
Appellant sued respondent for $1,840 under a lease for thirty months, from January 15, 1929, at $70 per month for the first twelve months, and $75 per month for the balance of the time.
Appellant alleged that an oral lease as above, was entered into with the understanding that later a written lease was to be drawn to the same effect, but when so prepared, respondent refused to sign it, and refused to pay after the expiration, June, 1929, of his five months' occupancy of the premises, having paid therefor $70 per month from January, 1929.
Respondent denied the above agreement, and claimed that he had leased the premises for only the five months, the unexpired period of the lease of a former tenant. The appeal is from a directed verdict in favor of respondent.
If reasonable inferences may be drawn from the evidence sustaining appellant's contention, the motion was improperly granted ( Keane v. Pittsburg Lead Co., 17 Idaho 179, 105 P. 60; Marshall v. Gilster, 34 Idaho 420, 201 P. 711; Pocatello Security Trust Co. v. Henry, 35 Idaho 321, 27 A.L.R. 337, 206 P. 175; Smith v. Marley, 39 Idaho 779, 230 P. 769; First Nat. Bank v. Stringfield, 40 Idaho 587, 235 P. 897; McCornick Co. v. Tolmie Bros., 42 Idaho 1, 243 P. 355; Independent Irr. Co. v. Baldwin, 43 Idaho 371, 252 P. 489; Porter v. Pincock, 44 Idaho 235, 256 P. 93; Cooper v. Oregon Short Line R. R. Co., 45 Idaho 313, 262 P. 873; Scrivener v. Boise Payette Lumber Co., 46 Idaho 334, 268 P. 19; Brown v. Jaeger, 46 Idaho 680, 271 P. 464; Adams County v. Meadows Valley Bank, 47 Idaho 646, 277 P. 575; Ashley State Bank v. Hood, 47 Idaho 780, 279 P. 418; Wyland v. Twin Falls Canal Co., 48 Idaho 789, 285 P. 676), the same rule applying to a directed verdict as to a nonsuit. ( Smith v. Marley, supra; Servel v. Corbett, 49 Idaho 536, 290 P. 200.)
Appellant testified that she and respondent agreed on a three-year lease, and that she so instructed her scrivener, but the written lease as drawn by her agent and submitted to respondent, was for thirty months.
The scrivener who handled appellant's rental business, testified respondent told him the written lease was to be drawn for thirty months. Thus appellant's own witness contradicts her, and either there was no meeting of the minds, or if we take appellant's testimony for full value, and she may not urge that we disregard it, and it would be unreasonable to do so, the oral agreement was for three years, but appellant alleges, and relies on a thirty months' agreement, an impasse with the burden of proof on appellant, therefore no support of the essential allegation. ( McDonnell v. Jones, 25 Idaho 551, 138 Pac. 1123; McConnon Co. v. Hodge, 26 Idaho 376, 143 P. 522; Jones v. Bartlett, 36 Idaho 433, 211 P. 555; Nelson v. Intermountain Farmers' Equity, 36 Idaho 518, 211 P. 550; Keltner v. Bundy, 40 Idaho 402, 233 P. 516; Mahaffey v. McNicoll, 42 Idaho 108, 244 P. 401.)
To sustain the allegations of the complaint, the evidence must lead reasonably to the inference that the minds of the parties met upon the oral agreement stated, i. e., thirty months. ( Gaskill v. Jacobs, 38 Idaho 795, at 799, 225 P. 499; Ambrose v. Hyde, 145 Cal. 555, 79 P. 64; 35 C. J. 957, 1143; 36 C. J. 428.)
Respondent denied either a thirty months or three-year lease, and his direct or cross-examination does not aid appellant's allegation of a thirty months' lease. From the testimony no reasonable inference may be drawn that appellant and respondent agreed to a lease for thirty months as alleged and sued for, and the motion was properly granted. ( Crabill v. Oregon Short Line R. R. Co., 34 Idaho 251, 200 P. 121; Geerhart v. Federal Land Securities Co., 35 Idaho 137, 204 P. 1072; Bowman v. Bohney, 36 Idaho 162, 210 P. 135; Munn v. Twin Falls Canal Co., 43 Idaho 198, 252 P. 865.)
It is not a question of variance, but failure of proof to establish the lease alleged. ( Holt v. Spokane Palouse Ry. Co., 4 Idaho 443, 40 P. 56; Taylor v. Fluharty, 35 Idaho 705, 208 P. 866; Rosendahl v. Lemhi Valley Bank, 43 Idaho 273, 251 Pac. 293; Servel v. Corbett, 49 Idaho 536, 290 P. 200; Rude v. Coulter Tow Boat Co., 119 Wn. 60, 204 P. 801.)
Judgment affirmed. Costs to respondent.
Lee, C.J., and Budge, Varian and McNaughton, JJ., concur.
ON PETITION FOR REHEARING.
In a petition for rehearing, appellant contends we have fallaciously and illogically differentiated between failure of proof and variance.
The complaint alleged a certain definite specific oral lease, to be reduced later to writing, and the evidence failed to reasonably show that the minds of the parties met on the terms of the lease alleged. The authorities clearly recognize this as failure of proof. (36 C. J., sec. 1335, p. 417; 36 C. J., sec. 1348, p. 427; 49 C. J., sec. 1204, p. 816.)
In Locke v. Kennedy, 171 Mass. 204, 50 N.E. 531, the complaint alleged a three-year lease from November 13, 1893, at $27.78 per month. The evidence showed some tenancy, but failed to show a lease for three years from the date alleged. The court said:
"While the evidence did not show a variance, it did not prove the allegations of the count as they were laid. It is yet the rule that material descriptive averments must be proved as laid, and the allegations that the indenture bore date November 13, 1893, that the term was for three years from that date, and that the unpaid rent which the defendant owed was for seven months from that date, were descriptive averments, which identified the contract sued on, and which we think must be proved as laid to enable the plaintiff to recover upon the count as the declaration then stood. Stanwood v. Scovel, 4 Pick. 422; Whiting v. Withington, 3 Cush. 413; this objection to the plaintiff's recovery could easily have been removed by an amendment. Birnbaum v. Crownshield, 137 Mass. 177. The ruling excepted to, that there was not sufficient evidence to warrant a verdict for the plaintiff as his case was presented by the declaration, was well calculated to suggest to the plaintiff that he should ask leave to amend the count, and, as the case stood, was correct in law, so that the exceptions to it must be overruled."
No motion to amend the pleadings to conform to the proof was made herein.
Petition for rehearing denied.
Lee, C.J., and Budge, Varian and McNaughton, JJ., concur.