Taylor v. Terry

Belcher, C. C. This is an action for unlawful detainer. The plaintiff recovered judgment, from which the defendant appealed, and the case comes here on the judgment roll.

It appears from the findings that on the first day of October, 1884, the plaintiff leased to the defendant, by verbal lease, the land in question for the term of one year, commencing on the first day of October, 1884, and ending on the first day of October, 1885; that on the sixth day of August, 1885, the plaintiff again, by verbal lease, leased the land to the defendant for the term of one year, to commence the first day of December, 1885, and end on the first day of December, 1886; that the plaintiff promised and agreed to reduce the last-mentioned lease to writing, but failed and refused to do so; that the de[47]fendant continued in possession of the property after the expiration of the term for which it was first let to him, without the permission of the plaintiff; that on the fifth day of October, 1885, the plaintiff made demand in writing that the defendant deliver up and surrender the possession of the premises, but the defendant then refused and still refuses to do so; that after such demand more than three days elapsed before the commencement of the action, and that the value of the rents and profits of the premises is the sum of thirty dollars per month.

It further appears from the record that the action was commenced on the twentieth day of October, 1885, and on the twentieth day of November following judgment was rendered that the plaintiff recover possession of the property and the sum of fifty dollars damages, which were trebled.

It is argued by the appellant that the verbal lease of the 6th of August was a valid lease, though the term was not to commence till the 1st of December; and in support of this he cites Young v. Dake, 5 N. Y. 463; S. C., 55 Am. Dec. 356; Becar v. Flues, 64 N. Y. 518; Civ. Code, sec. 1624, subd. 5.

On the other hand, it is contended by the respondent that the lease of the 6th of August was within the statute of frauds and void; and in support of his contention he cites Pulse v. Hamer, 8 Or. 251; White v. Holland, 2 West Coast Rep. 671; Wolf v. Dozer, 22 Kan. 436; Atwood v. Norton, 31 Ga. 507; Delano v. Montague, 4 Cush. 42; Civ. Code, sec. 1624, subd. 1.

The question thus presented does not arise in the case, and we shall therefore not attempt to decide it.