Opinion
Aug. 21, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1071
Calkins, Kramer, Grimshaw & Harring, Daniel C. Hale, Denver, for plaintiff-appellant.
Litvak, Schwartz & Karsh, P. C., Alan E. Karsh, Denver, for defendant-appellee.
COYTE, Judge.
While plaintiff was constructing a building, Mr. Tosh Okano inquired about renting office space. Negotiations were held and plaintiff initially agreed to rent space to Mr. Okano for a period of five years and spent $1,000 in preparing the premises for occupancy by him. Defendant took possession of the rental space, paid rent monthly for a period of three months, and then vacated the premises without having signed a lease. Plaintiff filed suit seeking rental due under the alleged lease and damages for its expense in restoring the premises after the rental agreement was allegedly breached. Defendant denied that improvements had been made for its benefit, denied there was a rental agreement other than a month-to-month tenancy, and alleged that plaintiff's action was barred by the statute of frauds. At the conclusion of plaintiff's evidence, the court granted defendant's motion for dismissal on the ground that the action was barred by the statute of frauds.
Plaintiff on appeal contends that the court erred in ruling that the lease agreement between the parties was barred by the statute of frauds. We disagree and affirm.
A written lease was delivered to Mr. Tosh Okano after he took possession of the premises. He did not sign the lease, but instead made notations on the lease by writing in the name 'Tosh Okano Communications Inc.' as lessee just above the name 'Mr. Toshio Okano,' as written in the lease, and also wrote in the margin of the lease the words '3 years' opposite the designation of five years as written in the tendered lease. These changes were never integrated into a written lease. One of plaintiff's partners testified that the partners had orally agreed to these changes and this suit was based on a three-year lease.
C.R.S.1963, 59--1--8, provides that a lease in excess of one year is void unless the same is reduced to writing and signed by the party by whom the lease is made. The three-year oral lease, if established, would be barred by the statute of frauds if there were not partial performance under the lease. Plaintiff prepared the premises for initial occupation by defendant, gave it possession, and also made a change for defendant after it moved into the premises. Plaintiff contends that it established the existence of a three-year oral lease and that there has been part performance under the terms of the lease, and, therefore, the statute of frauds does not bar enforcement of the lease.
Before a party may utilize the doctrine of part performance to remove an oral contract concerning real property from the operation of the statute of frauds, 'it is necessary that all the essential terms of the contract must first be established by competent evidence and shown to be definite, certain, clear, and unambiguous.' Mestas v. Martini, 113 Colo. 108, 155 P.2d 161. Here, the trial court found, when it denied plaintiff's motion for a new trial, that 'a contract for leasing was not proven because the evidence indicated that there were only two offers made and no actual consummation of the contract.'
The nature of the part performance required to avoid the effect of the statute of frauds was considered in Kiter v. Owen, 115 Colo. 7, 168 P.2d 254, where the court, quoting from Knoff v. Grace, 68 Colo. 527, 190 P. 526, said:
"It is also the rule that what is done as part performance must, to escape the statute (statute of frauds), be consistent with no theory other than that of the alleged oral lease. What is fairly referable to some other cause than the contract as alleged will not be regarded as sufficient part performance to justify a decree of specific performance."
On the question of part performance, the trial court found:
'. . . But, in this particular case, we have a performance that is more consistent with month-to-month tenancy than it is with this lease and, therefore, can be construed either way.'
The evidence supports the findings of the trial court that there was no consummation of the contract and that the performance of defendant was as consistent with a month-to-month tenancy as with the contract alleged by plaintiff. Where there is evidence to support the findings, they are binding on this court. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453.
Judgment affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.