A lease is to be carefully distinguished from a contract to make a lease in the future, the distinction being that between a conveyance and a contract to make a conveyance. The rights of both the owner of the land and of the proposed lessee, by reason of such a contract, are entirely different from such as they may have after the lease itself has been made. For instance, a contract to make a lease, a contract for a lease, as it is ordinarily termed, gives the proposed lessee no right of possession which he can assert against the lessor or against third persons,60 while on the other hand he is not liable thereunder for rent or for use and occupation for the whole term, and is not liable to any extent unless he obtains possession.61 Nor is there any right of distress for rent.62 In the case of a mere contract, the parties have a right to insist upon the insertion, in the instrument of lease itself, of the usual covenants, while if the lease itself has been executed without some or all of these, the covenants omitted cannot afterwards be inserted in the absence of fraud or mistake.63

58. Rosser v. Harris, 48 Ga. 512; Stautz v. Protzman & Peer, 84 111. App. 434 (and payment of rent); Switzer v. Gardner, 41 Mich. 167, 2 N. W. 191 (semble); Moore v. Beasley, 3 Ohio 294; Bless v. Jenkins, 129 Mo. 647, 31 S. W. 938; Noland v. Cincinnati Cooperage Co., 26 Ky. L. Rep. 837, 82 S. W. 627, Koplitz v. Gustavus, 48 Wis. 48, 3 N. W. 754, (and payment of rent).

59. That the taking of possession without improvements is insufficient, see Storthy v. Watts, 117 Ark. 500, 175 S. W. 406; Bard v. Elston, 31 Kan. 274, 1 Pac. 565; Osgood v. Shea, 86 Neb. 729, 42 L. R. A. (N. S.) 648, 126 N. W.

310; Nicholes v. Swift, 118 Ga. 922, 45 S. E. 708; Halligan v. Frey, 161 Iowa, 185, 49 L. R. A. (N. S.) 112, 141 N. W. 944.

60. Harrison v. Parmer, 76 Ala. 157; Gibson v. Needham, 96 Ga. 172, 22 S. E. 702; Hinckley v. Guyon, 172 Mass. 412, 52 N. E. 523; St. Louis Brewing Ass'n v. Niederluecke, 102 Mo. App. 303, 76 S. W. 645; Jackson v. Delacroix 2 Wend. (N. Y.) 433; Doe d. Wood v. Clarke, 7 Q. B. 211.

61. Pinero v. Judson, 6 Bing. 205; Johnson v. Phoenix Mut. Life Ins. Co., 46 Conn. 92; Kabley v. Worcester Gas Light Co., 102 Mass. 392; Arnold v. R. Rothschild's Sons Co., 37 N. Y. App. Div.

Whether a particular transaction constitutes a lease or a mere contract for a lease is a question in each case of the intention of the parties.64 Ordinarily the question arises with reference to a written instrument, and calls for a construction of the instrument as a whole, but it may arise when the transaction is not embodied in a writing, and then it is a question on the evidence. Certain rules are deducible from the decisions which may aid in the solution of this question as it arises.

That the words "agrees to let" are used does not necessarily show the transaction to be a contract for a lease65 and conversely, in at least one case, the expression "doth lease" has been construed, in view of the context and surrounding circumstances, as involving merely such a contract.66 The fact that there is a provision for the execution of a lease in the future, or a reference to such a lease, does not necessarily show that a mere contract for a future lease is intended, since such language may be inserted merely to secure the execution of a more formal instrument.67 Ordinarily, however, it seems the presence of such a provision tends to show that the intention is merely to make a contract for the making of a lease in the future.68

564, 56 N. Y. Supp. 161; Henderson v. Schuylkill Valley Clay Mfg. Co., 24 Pa. Super. Ct. 422.

62. Hancock v. Coffyn, 8 Bing. 358; Dunk v. Hunter, 5 Barn. & Ald. 322.

63. Sugden, Letters to a Man of Property, 96.

64. Potter v. Mercer, 53 Cal. 667; Johnson v. Phoenix Mut. Life Ins. Co., 46 Conn. 92; Weed v. Lindsay, 88 Ga. 686, 20 L. R. A. 33. 15 S. E. 836; Holley v. Young, 66 Me. 520; Hallett v. Wylie, 3 Johns (N. Y.) 44, 3 Am. Dec. 457; Griffin v. Knisely, 75 111. 411;

Bacon v. Bowdoin, 22 Pick. (Mass.) 401.

65. Doe d. Phillip v. Benjamin, 9 Adol. El. 644; Holley v. Young. 66 Me. 520; Kabley v. Worcester Gas Light Co., 102 Mass. 392; Western Boot & Shoe Co. v. Gannon, 50 Mo. App. 642; Averill v. Taylor, 8 N. Y. 44; Steel v. Frick, 56 Pa. St. 172.

66. Jackson v. Delacroix, 2 Wend. (N. Y.) 433; See Bac. Abr. Leases (K).

67. Maldon's Case, Cro. Eliz. 33; Jones v. Reynolds, 1 Q. B. 506; Garber v. Goldstein, 92 Conn. 226.

The fact that the terms of the tenancy are left unsettled in some material point,69 as, for instance, the time of commencement70 or the duration71 of the tenancy, or the amount of the rent,72 tends to show an intention to create a contract merely.

The fact that, though there is no express stipulation in the instrument as to the taking of immediate possession, the proposed lessee is admitted into possession immediately upon the execution of the instrument, has been regarded in several cases as tending to show that a lease was intended.73 It may well happen, however, that though the intention is, by the written instrument, to evidence merely a contract for a lease to be executed in the future, the proposed lessee is orally given permission to take possession immediately. In that case there are two transactions, one a contract evidenced by writing and the other an oral lease.