This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
An oral contract to lease realty for a term of years is within the statute if not specifically excepted therefrom.1 Hence a written contract for a lease, subsequently, before acceptance, modified over the telephone and accepted orally as modified, is within the statute.2 So an oral contract to extend a lease for years,3 or to assign a lease for years,4 or to surrender a lease for
1 McKinnon v. Mixon, 128 Ala. 612; 29 So. 690; Manning v. Pip-pen, S6 Ala. 357; 11 Am. St. Rep. 46; 5 So. 572; Pond v. Sheean, 132 111. 312; 8 L. R. A. 414; 23 N. E. 1018; Austin v. Davis, 128 Ind. 472; 25 Am. St. Rep. 456; 12 L. R. A. 120; 26 N. E. 890; Jackson v. Myers, 120 Ind. 504; 22 N. E. 90; 23 N. E. 86; McLennan v. Boutell, 117 Mich. 544; 76 N. W. 75; McDonald v. Maltz, 78 Mich. 685; 44 N. W. 337; Fargusson v. Improvement Co., 56 Minn. 222; 57 N. W. 480; Taylor v. Von Schroeder, 107 Mo. 206; 16 S. W. 675; Bloomfield State Bank v. Miller, 55 Neb. 243; 70 Am. St. Rep. 381; 44 L. R. A. 387; 75 N. W. 569; Jordan v. Furnace Co., 126 N. C. 143; 78 Am. St. Rep. 644; 35 S. E. 247; Kling v. Bordner, 65 O. S. 86; 61 N. E. 148; Cleveland v. Evans, 5 S. D. 53; 58 N. W. 8; Swash v. Sharpstein, 14 Wash. 426; 32 L. R. A. 796; 44 Pac. 862.
2 Such as dower, Brown v. Rawl-ings, 72 Ind. 505; Gordon v. Gordon, 54 N. H. 152; Keeler v. Tatnell, 23 N. J. L. 62. Even if unassigned; Finch v. Finch, 10 O. S. 501.
1 Bailey v. Ferguson, 39 111. App. 91; Emery v. Terminal Co., 178 Mass. 172; 86 Am. St. Rep. 473; 59 N. E. 763; Smalley v. Mitchell, 110 Mich. 650; 68 N. W. 978; Smith v. Phillips, 69 N. H. 470; 43 Atl. 183; Unglish v. Marvin, 128 N. Y. 380; 28 N. E. 634; Browning v. Berry, 107 N. C. 231; 10 L. R. A. 726; 12 S. E. 195; Jordan v. Furnace Co., 126 N. C. 143; 78 Am. St. Rep. 644; 35 S. E. 247; Davis v. Pollock, 36 S. C. 544; 15 S. E. 718; Schulz v. Schirmer (Tex.), 49 S. W. 246; Utah Optical Co. v. Keith, 18 Utah 464; 56 Pac. 155.
2 Wiessner v. Ayer, 176 Mass. 425; 57 N. E. 672. (The written offer was not accepted, and the offer as accepted was partly oral.)
3Sidebotham v. Holland (1895), 1 Q. B. 378; Emery v. Terminal Co., 178 Mass. 172; 86 Am. St. Rep. 473; 59 N. E. 763.
4 Chicago Attachment Co. v. Machine Co., 142 111. 171; 15 L. R. A. 754; 31 N. E. 438; affirming on rehearing, 28 N. E. 959; reversing, 25 N. E. 669. (Distinguishing Webster v. Nichols, 104 111. 160, as a years,5 or to sublet realty held by lease,6 are each of them within the statute.
A complication in the law of estates for years arises out of exceptions to the statute of frauds specifically made in their favor, and of questions of the effect of such exceptions or of part performance upon the clause of the statute concerning contracts not to be performed within the year. Short leases, usually of from one to three years, are in some jurisdictions specifically excepted from the operation of the statute of frauds.7 The original statute of frauds excepted leases for three years or less.8 The proviso that the rent reserved in such leases must amount to "two-thirds part at the least of the thing demised" refers to two-thirds of the rental value and not of the fee.9 Where such a statute is in force an additional statute making such short leases valid without acknowledgment and the like does not prevent them from being excepted from the statute of frauds.10 Under a statute of frauds which excepts leases for a year from its operation as far as it deals with realty, a contract for a lease for a year to begin in the future is not within the operation of the clause concerning interests in realty.11 Whether it is a contract which cannot be performed within a year from the date of the making thereof, and hence within another clause of the statute, is a question upon which the courts have divided. Some courts hold that such contracts are not within the clause of the statute concerning contracts which cannot be performed within the year.12 Two reasons are advanced for this view: case in which the oral assignment of a lease was upheld because the statute of frauds was not pleaded.) Kingsley v. Siebrecht, 92 Me. 23; 69 Am. St. Rep. 486; 42 Atl. 249; Penney v. Lynn, 58 Minn. 371; 59 N. W. 1043; Nally v. Reading, 107 Mo. 350; 17 S. W. 978; Tiefenbrun v. Tiefenbrun, 65 Mo. App. 253.
5Rees v. Lowy, 57 Minn. 381; 59 N. W. 310.
6Fratcher v. Smith, 104 Mich. 537; 62 N. W. 832.
7 Hosli v. Yokel, 57 Mo. App. 622.
8 Childers v. Talbott, 4 N. M. 336; 16 Pac. 275.
9 Childers v. Lee, 5 N. M. 576; 12 L. R. A. 67; 25 Pac. 781; Childers v. Talbott, 4 N. M. 336; 16 Pac. 275.
10 Ward v. Hinckley, 26 Wash. 539 ; 67 Pac. 220.
11 Higgins v. Gager, 65 Ark. 604; 47 S. W. 848; Whiting v. Ohlert, 52 Mich. 462; 5C Am. Rep. 265; 18 N. W. 219.
12 Higgins v. Gager, 65 Ark. 604; 47 S. W. 848; Steininger v. Wil.
First, that by specifically providing for leases for a year or more the legislature has manifested an intention to exempt such contracts altogether from the operation of the clause concerning contracts not to he performed within the year; second, that since taking possession under the lease is a performance of the contract, performance within the year is possible if the time at which the lease is to begin is within a year from the date of making the contract. In other jurisdictions a contract for a lease for a year to begin in the future is held to be within the clause concerning contracts not to be performed within the year.13 A contract for a lease for an indefinite time which may extend beyond a year,14 as a contract for the use of land by A until she receives out of the profits the amount sufficient to pay her for caring for promisor's father15 is within the statute. So a contract for a lease to end with an event which must in the course of nature last beyond a year, as a lease for one year, tenant to put in a crop of wheat, the harvesting of which cannot be finished for fifteen months after the term begins,16 is within the statute.
An oral lease for one year with the privilege of three has been held a lease for more than one year and hence within the statute.17 On the other hand, if a tenant holds over under an oral agreement for temporary occupation after the expiration of a lease which provided for a term of one year with an option for liams, 63 Ga. 475; St. Joseph Hydraulic Co. v. Paper Co., 156 Ind. 665; 59 N. E. 995; Jones v. Marcy, 49 la. 188; Sobey v. Brisbee, 20 la. 105; Whiting v. Ohlert, 52 Mich. 462; 50 Am. Rep. 265; 18 N. W. 219; McCroy v. Toney, 66 Miss. 233; 2 L. E. A. 847; 5 So. 392; Ward v. Hasbrouck, 169 N. Y. 407; 62 N. E. 434; Becar v. Flues, 64 N. Y. 518; Young v. Dake, 5 N. Y. 463; 55 Am. Dec. 35G.
13White v. Levy, 93 Ala. 484; 9 So. 164; Cochran v. Ward, 5 Ind. App. 89. 97: 51 Am. St. Rep. 229; 2!> X. E. 795; 31 N. E. 581 (construing the Illinois statute) ; Greenwood v. Strother, 91 Ky. 482; 16 S. W. 138; Brosius v. Evans, - Minn. -; 97 X. W. 373; Cook v. Redman, 45 Mo. App. 397; Beiler v. Devoll, 40 Mo. App. 251.
14 Contra, if terminable at will. Hirsch v. Kohn, 20 111. App. 330.
15Smalley v. Mitchell, 110 Mich. 650; 68 X. W. 978.
16 Carney v. Mosher, 97 Mich. 554; 56 X. W. 935.
17Hand v. Osgood, 107 Mich. 55; 61 Am. St. Rep. 312; 30 L. R. A. 379; 64 N. W. 867.
three, such oral agreement may he shown to relieve such tenant from liability for rent for the term of three years.18
If a written lease for a certain term provides that upon giving notice the lease is to continue for a given term further, the additional term depends for its validity upon the written lease. The notice, therefore, which fixes the right to the additional term is not within the statute of frauds.19 Thus even if a contract for an estate in realty can be executed only by an agent authorized in writing, a notice of the sort specified may be given by an agent without written authority.20 So an agreement in the written lease providing for fixing the rent for the renewal period by having the property leased valued by appraisers, the rent to be a certain percentage of such value, does not make the renewal rest on oral agreement and is not within the statute.21 If a lease is made for more than one year in such form as not to be in compliance with the statute, though if for one year only, it would be within the statute, such lease cannot be separated and held valid for one year.22