Potter v. Mercer

By the Court, Crockett, J.: The most important question on this appeal is, whether the verbal agreement which one of the plaintiffs testified was entered into on the 27th day of September, was a lease in presentí for a term of one year, to commence on the 1st day of October next ensuing, or whether it was only an agreement for a written lease to be thereafter executed. There is no conflict in the evidence to the effect that a written lease was to be executed, and that the agents of the lessor refused to make a verbal lease.

F. A. Potter, one of the plaintiffs, on cross-examination, was asked the question whether there was an understanding between the parties, that when they got through with the negotiations a written lease was to be made ? To which he answered: “ My understanding was that, when I rented the store in the morning, they told me that they would make out a written lease. I went [670]to occupy it with that understanding.” A. W. Potter, another of the plaintiffs, testified: “ I told him [Mercer] that we would be satisfied with a verbal lease, for that would hold it for the year at any rate. He says: Well, I can’t make the lease a verbal lease. I would have to see Mr. Davis. Whatever arrangements you make with Mr. Davis would be satisfactory.’ ” Fuller, another of the plaintiffs, testified that in a conversation with Davis, the day before the alleged leasing, Davis “ made the remark for Mr. Mercer to make out the lease and submit it to him to read.” There is nothing in all the testimony tending to show that the lease was to be verbal. On the contrary, the whole of the evidence on that point tends to show that the agents for the lessor refused to make a verbal lease, and that the parties all understood that the lease was to be in writing, and was to be submitted to Davis for his approval before taking effect. This circumstance of itself is sufficient to show that the. parties could not have understood the conversation which occurred on the 27th of September as a lease in presentí, and must have understood that it was not intended to vest an estate in the plaintiffs until the agreement should be consummated by a written lease.

If a proposed lessor, during the entire negotiation, explicitly refuses to make a verbal lease, and thereupon it is mutually agreed that the lease shall be reduced to writing, it is difficult to see on what ground it could be held that the verbal agreement for a written lease is of itself a lease in presentí. To give this construction to the verbal agreement would be to bind the lessor by a verbal lease, when he refuses peremptorily to make a verbal lease. In other words, it would be, by construction of law, to make a valid verbal lease in presentí, in the face of a distinct understanding between the parties that there was not to be a verbal lease at all. The verbal contract may be a valid agreement for a written lease, for a breach of which an action for damages would lie ; but it is not of itself a lease in presentí.