On October 15, 1890, Weed obtained a warrant to dispossess Lindsay & Morgan of certain real estate in Savannah, alleging in bis affidavit therefor that the property was rented to Lindsay & Morgan, who took possession in October, 1889, as tenants at will; that on April 8, 1890, he gave them notice that he desired the posses sion of his said property at the expiration of two months after the notice; that by this notice, and the expiration of time, the tenancy was terminated and the lease expired; and that afterwards they refused to deliver the posses sion to him. The defendants, by their counteraffidavit, averred that their lease or term of rent from plaintiff had not expired. The jury found for defendants, and plaintiff's motion for a new trial was overruled, to which he excepted. In addition to the general grounds of the motion that the verdict was contrary to law, evidence, etc., it was alleged therein: The court erred in admitting parol evidence to establish a verbal contract on the part of plain tiff to erect a building of specific character and dimensions, not set out in the written contract between the parties, without any allegation in the pleadings that said particulars were intended to be included in the contract, and were omitted by either fraud, accident, or mistake, plaintiff objecting to the introduction of this parol testimony on the grounds that it was ir relevant; that it was not covered or suggested by any pleadings filed in the case; that it was an attempt to add to and vary a written contract by parol; that it set up an agreement concerning land which the statute required to be in writing; and that it presented issues involved

into possession of the premises under an agreement to take a house for twenty-one years determinable at seven and fourteen years. The agreement provided that the lease to be granted should contain a covenant on the part of the defendant to purchase the fee-simple at a price named, at any time within the first seven years, and also should contain a covenant for payment of a named sum as rent, and other covenants. The tenant quitted at the expiration of the first seven years without giving notice to quit. It is held that when the defendant entered he was only tenant at will until he paid rent, and then he became tenant from year to year; and that tenancy could only be terminated by notice to quit, or surrender in writing.

in a suit between the parties pending in the superior court of Chatham county. (The case was tried in the city court of Savannah.) Also that the court erred in refusing to charge the following written requests by the plaintiff: "The written contract between the parties reads as follows: 'Savannah, Georgia, 4th June, 1889. I am to erect a four-story building sixty feet or more front, and Messrs. Lindsay & Morgan agree to pay me four thousand dollars per annum net, if the cost of the building at six per cent, with a valuation of forty thousand dollars for the lot, viz., lot number one, Eyled ty thing, Heathcote ward, does not exceed that amount. If it does, then Lindsay & Morgan are to pay Joseph D. Weed six per cent on the cost, including above valuation of lot. Lindsay & Morgan are to pay all taxes, keep the building in repair, and keep building insured for its cost. Upon these conditions Joseph D. Weed agrees to give them a lease for ten years from the date the building is ready for occupation. (Signed) Joseph D. Weed. (Signed) Lindsay & Morgan.' Icharge you that the contract I have read was not a present demise or lease which granted to Lindsay & Morgan an immediate estate for years out of the estate of Joseph D. Weed (Čode,

2278); but was a contract to give them a future lease for ten years from the date when the building to be constructed was ready for occupation. If you find from the evidence that on June 4, 1889, a contract in writing was made between the parties to this suit, by which the said Joseph D. Weed agreed, upon the terms and conditions therein stated, to give to | entered into a contract to build for the plaintiff certain houses, and further agreed to take the houses for three years at a fixed rent from a date named, when they were to be finished. The action was for use and occupation. The houses had not been completed at the time agreed on, but when the plaintiff paid the balance due defendants on the building contract, he deducted the first quarter's rent, the defendants left the keys at plaintiff's house-but he did not accept them-and refused to have anything more to do with the matter. After the commencement of the second quarter the defendants put up a board on the houses for the purpose of renting them, and this was held to be an assertion of a right of possession and the defendants were held liable for the rent.

Since the judicature act, however, one who enters under an agreement for a lease is no longer to be considered as a tenant from year to year. Possession is held under the agreement. There are not two estates as there were formerly, one estate at common law, by reason of the payment of rent

In Braythwaite v. Hitchcock, 10 Mees. & W. 494, the tenant bad entered under an agreement for a lease, and had occupied for more than a year, and had paid two quarters' rent. It was held that the tenant became, by the payment of rent, tenant from year to year, and had an assignable interest. The payment of rent which will change one who enters under an agreement from a tenant at will to a tenant from year to year must be a payment with reference to a yearly holding.

In Richardson v. Langridge, 4 Taunt. 128, a party who had not paid the rent with reference to a year, or any aliquot part of a year, was held to be a tenant at will only.

the agreement. The tenant holds under the same terms in equity as if a lease had been granted, in a case where relief is capable of being given by specific performance. The tenant cannot be turned out on six months' notice as a tenant from year to year, and the landlord has the same rights as if a lease had been granted. The tenant cannot, therefore, complain of the exercise of the right of distress merely because the actual parchment has not been signed. Jessel, M. R., in Walsh v. Lonsdale, L. R. 21 Ch. Div. 9.

the said Lindsay & Morgan a lease of the premises described for ten years from the date when the building was ready for occupation; and further find that, before the said building was completed and ready for occupation, the said Lindsay & Morgan, by an arrangement made with the contractor who was erecting the building, and with the consent of the said Joseph D. Weed, began to store their goods therein, and to occupy the same in part before its completion; and further find that after the said building was completed, in November thereafter, the said Joseph D. Weed tendered to the said Lindsay & Morgan, then in the occupation of said building, a written lease of the same for ten years, and that said Lindsay & Morgan objected to the said lease, and refused to sign or execute the same; and that no lease has ever been made or given to the said Lindsay & Morgan for said building, other than the assent of the said Joseph D. Weed to their oc cupation of said building before completion under an agreement to give them a ten years lease when said building was ready for occupation; and that no rent has ever been paid by ibe said Lindsay & Morgan or received by the said Joseph D. Weed, then I charge you that the occupation of said building by said Lindsay & Morgan was a tenancy at will, and that they became tenants at will to said Joseph D. Weed. I further charge you that, under the Code of Georgia, two months' notice is necessary from the landlord to terminate a tenancy at will. Code, 2291. If you find that on the 8th day of April, 1890, the said Joseph D. Weed gave notice to the said Lindsay & Morgan that he

desired to terminate said tenancy, and to quit the occupancy and possession of said property after the expiration of two months thereafter, to wit, on June 13, 1890, and that on said June 13, 1890, demand was made for said premises by the said Joseph D. Weed, and was refused by said Lindsay & Morgan, then I charge you that said notice terminated said tenancy; that the said Joseph D. Weed became thereafter entitled to the possession of his said property; and that your verdict must be for the plaintiff.'

Also that the court erred in charging: "If Mr. Weed understood the contract in one particular way, and Messrs. Lindsay & Morgan understood it in another particular way; if Mr. Weed knew the way Lindsay & Morgan understood it, and did not correct it.-then that would be the contract that would be binding;" the said charge being obscure in not making it clear to the jury whose understanding would be binding, and there being no evidence to show that Mr. Weed understood the said contract in the particular way that Messrs. Lindsay & Morgan understood it. "The contract in writing is an exceedingly meager one, and is therefore necessarily to be explained by oral testimony. The contract is this as it is written: Savannah, Ga., June 4, 1889. I.'and you will notice that it is signed by Joseph D. Weed and by Lindsay & Morgan. That first word is an ambiguity, it being perfectly apparent on the face of said contract that Ï' referred to said Joseph D. Weed, and there being no ambiguity as to the party intended thereby. It is for me to say to you what this written instrument means, and to say whether

Dunne v. Trustees of Schools, 39 Ill. 578, is a very clear case. Here the defendant was allowed to take possession of premises on an agreement to execute a written lease. Subsequently he refused, on demand, to execute the lease. He occupied the premises for four years without paying rent, and no terms of tenancy were agreed on. It was held that the relation of landlord and tenant existed, and that the tenancy was at will which required no notice to quit.

Breese, J., said there was no difference between taking possession under a contract to purchase and under an agreement to lease.

Potter v. Mercer, 53 Cal. 667, was an action for forcible detainer. There had been a verbal agreement for a lease in futuro and the plaintiff bad, by permission, taken some of his property to the premises. But before the execution of the lease the defendant revoked the contract and took peaceable possession of the premises. It was held that the action could not be maintained.

possession of premises, and on a verbal agreement of the landlord to rent the premises for a term of years for a fixed rental, payable quarterly, and to prepare a lease embodying the terms, continued in possession. After the tenant had paid the first quarter's rent the landlord presented a lease containing an objectionable provision which the defendant refused to execute. The landlord then resumed control of the property. It was held that the plaintiff could not recover upon the implied contract, having deliberately chosen to ignore it and to shield himself under the statute of frauds; that, under the circumstances, the defendant was at liberty to abandon his occupation, without waiting actual expulsion, and to treat the conduct of the plaintiff as equivalent to a rescission of the contract and eviction.

A case of somewhat similar circumstances was Lyon v. Cunningham, 136 Mass. 532. Here the defendant had gone into possession of the premises under contract for a written lease for three years. After the first quarter's rent had been paid the landlord presented for signature a lease containing a provision against subletting which the defendant refused to accept. On the refusal of the landlord to strike out the objectionable clause the defendant gave notice that he would surrender the premises, and actually did vacate them in a week thereafter. It was held that an instruction to the effect that the letting into and taking possession, of themselves, created such a tenancy at will as necessarily required of the tenant the statutory notice in order to determine it, even if the landlord refused to execute a lease according to the contract, unless there was some understanding between the parties as to the duration of the term or the event which should terminate it, was erroneous. Field,

or not it is complete, and whether or not oral testimony should come in; and having declared that this is an incomplete and unintelligible contract as it stands, without explanation; that there is an open patent ambiguity in it which may be interpreted two or three or more different ways; and that there are, from the circumstances surrounding it, other ambiguities,-I have allowed oral testimony to explain it. This paper is not a lease, and yet they (meaning Liudsay & Morgan) may hold under it, and it may act as if it were a lease; it may be as binding as a lease; it may take the place of a lease under some circumstances. The view which I hold of this contract is this: The parties entered into or upon these premises under an agreement for a lease. If the agreement had never been carried out to make a lease, if the parties had occupied the building, and the building was such as they had the right to expect, and if they paid up the rent, and Mr. Weed had accepted the rent, and a lease had never been made, then this paper would have stood in the place of a lease. They would have been tenants for the length of time mentioned in this paper, and they would have had this paper as by its terms to govern the holding which they had. If, however, they failed to pay the rent which was reserved to be paid in this paper, and failed to pay it for a reason which you find to be a good and valid reason; if you find that the amount of four thousand dollars a year was not a proper amount for them to pay because of the failure, on the part of Mr. Weed, to furnish them with such a building as they had under the circum

has been let into possession under an oral contract for a written lease, solely in anticipation of the delivery of the lease, and without any other facts and circumstances from which an agreement can be inferred that he will hold as an ordinary tenant at will until it is delivered, it is a fair legal construction of the contract and acts of the parties, that the possession is taken and held on the condition that such a written lease as the contract calls for shall be delivered; and if the landlord refuses to execute and deliver such a written lease, we think the tenant can then treat the contract as at an end, and the tenancy is thus determined by the nonperformance of the condition as one of the incidents of the contract."

Emmons v. Scudder, 115 Mass. 367, resembled very closely Lyon v. Cunningham, supra. But a point of difference was that the defendants abandoned the premises because the plaintiff refused to repair according to agreement. The written lease was unexecuted, but it had been offered by the plaintiff, and the defendants had not objected to it. The defendants had before been tenants of a part of the premises of which part they remained in possession: | the remaining portion they let and received one or two months' rent therefor. They had paid a quarter's rent for the whole premises under protest. It was said in the opinion that a refusal to execute the lease would not convert the tenancy at will into a tenaucy at sufferance; and that if the making of the repairs were a condition precedent to the acceptance of the lease, "yet by entering upon the premises under the new agreement before this was done, they had made themselves the tenants at will of the plaintiff," and while the failure to make the repairs would be a breach of contract it would not entitle the defendants to terminate the tenancy upon which they had entered, as a tenant at sufferance might do.

stances the right to expect,-then you must also find that they had, and I so charge you, the right to refuse to pay the entire amount of the rent, and to leave it to the courts to determine, if the parties could not agree as to what amount of rent should be paid, without their becoming tenants at will and liable to ejectment. The law, gentlemen, seeks to be just. It tries to be just as fair as it can be, and there are oftentimes cases where the law is not just if it be strictly construed; therefore our laws have said, our Code has said, or the Legislature, speaking through the Code, has said, that wherever there is a right there shall be a remedy to enforce it, and, if the Legislature has provided no remedy, the court shall make a remedy for it. Therefore, if I thought that under the strict meaning or interpretation of the laws these gentlemen were tenants at will, it would be my duty, if I believed that they had rights which that construction would take away from them, to devise a means by which their rights should be protected. If they held the building and refused to pay the rent, being unjustified in so refusing, they are tenants at will, and you must by your verdict find for the plaintiff. If, on the other hand, they acted upon their right to occupy the building, or to not occupy it; if they were in the right in refusing to pay because the rent was not due, or because the amount of rent which was claimed was not due, and they withheld it because the building was necessary to them and because it was not reasonably suited to their purposes, refused to pay the entire amount of rent demanded,-if you find these

In Billings v. Canney, 57 Mich. 425, an agreement had been entered into whereby the respondent was to build a stable of which he should retain possession until the rents should pay for the construction. It was held that, while a mere agreement for a lease does not create a tenancy or give a right of possession, yet in this case the tenancy began immediately on the completion of the building.

To the same effect, see Neppach v. Jordan, 15 Or. 308, where the defendant had a verbal promise from the landlord for a lease for five years and entered with the landlord's consent and it was held that he was entitled to notice to quit as a tenant. It was said that "a mere agreement for a lease does not create a tenancy, or give the party with whom it is made a right to the possession. But where the owner permits a party to go into possession under an agreement for a lease which he afterwards refused to make, the case is different and the relation of landlord and tenant does exist."

Entry as part performance.

Specific performance of an agreement for a lease will be decreed with such covenants as are usual and incident to leases of the same kind, and such as flow from the contract and are necessary to give it effect. Henderson v. Hay, 8 Bro. Ch.632; Morgan v. Slaughter, 1 Esp. N. P. 8: Folkingham v. Croft, 3 Anstr. 700; Vere v. Loveden, 12 Ves. Jr. 179; Jones v. Jones, Id. 188: Church v. Brown, 15 Ves. Jr. 258; Robinson v. Cleator, Id. 526.

In the cases thus far mentioned the agreements were in writing and consequently excluded the operation of the statute against frauds and perjuries.

Courts of equity have often decreed specific performance of a parol contract to grant a lease in writing; and it is now well settled that a part performance of the agreement, where possession has

to be facts, then it will be your duty to find for the defendants. A tenant at will is one who enters into the possession of the lands or tenements of another lawfully, but for no definite term, and whose possession is subject to the determination of the landlord at any time he sees fit to put an end to it by giving two months' notice to quit, which our statute requires," the said charge presenting only a partial view to the jury, and failing to inform them of the reciprocal right of the tenant to terminate the tenancy at his will. "If you find from the testimony that Lindsay & Morgan had an agreement with Mr. Weed whereby they were to get a lease of ten years to the premises in question from the date of the completion of the building, and if you further find from the evidence that Lindsay & Morgan have performed, or have proffered to perform, all their obligations under this agreement, and that they are still entitled to said ten years' lease of said premises, then they are not tenants at will, and your verdict should be for Lindsay & Morgan. If you find from the testimony that Mr. Weed agreed to erect for Lindsay & Morgan a certain kind of building, and that he did not comply with his contract, but erected one that was inferior to the building he contracted to furnish and less valuable, then Lindsay & Morgan would have the right to have the rent, which they agreed to pay, reduced by such an amount as would compensate them for the damages which they sustained by reason of Mr. Weed's violation of his contract, provided, of course, Lindsay & Morgan make it appear to your satisfaction

been delivered and rent paid in pursuance of its terms, will take the case out of the statute of frauds.

In Jones v. Peterman, 3 Serg. & R. 543, a decided opinion was expressed by Gibson, J., that possession alone, in pursuance of the contract, was sufficient performance to take the case out of the statute.

In Gregory v. Mighell, 18 Ves. Jr. 328, the tenant occupied the premises under a parol agreement for a lease and had partly performed by taking possession of and manuring the land. It was held that specific performance ought to be decreed.

And where the part performance was simply by taking possession and paying rent, the lord chancellor held that the agreement ought to be carried into execution. Kine v. Balfe, 2 Ball & B. 343.

In Morphett v. Jones, 1 Swanst. 172, Lord Eldon decreed specific performance of a parol agreement to grant a lease on the testimony of one witness, confirmed by circumstances against the denial of the answer, after part performance by delivery of possession.

The principle of those cases was asserted in Walsh v. Rundlette, 2 MacArthur, 114, where the court decreed specific performance of a parol agreement for a lease which had been performed by the complainant by taking possession and paying rent.

In Wallace v. Scoggins, 17 Or. 476, the plaintiff had, relying on an agreement for a lease for a term of years, gone into possession of the premises and expended a considerable sum of money. This was held to be sufficient performance and a decree was made in compliance with the prayer of the bill.

The case of Wendell v. Stone, 39 Hun, 382, presented very much the same facts as Wallace v. Scoggins, and was decided in the same way. Parkhurst v. Van Cortland, 14 Johns. 15, 7 Am.

that they have sustained such damages. If, therefore, the testimony shows that Mr. Weed thus violated his contract and if no lease was tendered to Lindsay & Morgan until after the building was completed, then they were not under any obligation to sign a lease providing for the four thousand dollars' net rent, but were entitled to a lease at such a reduced rent as would compensate them, or measure the difference in the rental value between the building which Mr. Weed contracted to furnish and the building which they actually got. If you find from the testimony that a lease was tendered by Mr. Weed to Lindsay & Morgan after the completion of the building, and with the rental of four thousand dollars' net provided therein, and if you further find from the testimony that Lindsay & Morgan were not liable for this amount of rent, but were entitled to an abatement of it, and if you further find from the testimony that Mr. Weed was unwilling to give a lease for any less rent, and that Lindsay & Morgan rightfully and properly refused to sign the lease, then said refusal on their part did not forfeit their rights under their contract, and did not make them tenants at will. If you find from the testimony that Lindsay & Morgan have performed, or have been ready and willing and offering to perform, all their obligations under their contract with Mr. Weed, and that they are entitled to a lease of the premises for the term of ten years from the completion of the building, then it is not necessary for them to quit the possession of said premises until the courts can decree the specific performance of the con

| Dec. 427, was a bill for specific performance of an agreement to lease or sell land. The appellants had entered upon the land under an assignment of a license given by the respondent to occupy and improve the land; they afterwards surrendered that license to the respondent, who gave them a written memorandum authorizing them to possess the land and promising to give them the preference to purchase or lease the land. The evidence was that at various times the respondent had encouraged the appellants to build on the land by assuring them that as soon as he could perfect his title he would give them a lease, or a deed. The respondent denied any other agreement than the written memorandum and relied on the statute of frauds. It was held that the entry on the land, and the making of improvements amounted to a part performance; that, though the memorandum was in itself uncertain, yet as a part performance was made a basis of the claim to a specific execution of the agreement, parol evidence might be connected with the memorandum for the purpose of making out the contract; and there being satisfactory evidence of an agreement, independently of the memorandum, the decree was granted.

In Farrall v. Davenport, 8 Jur. N. S. 862, there was clear proof of a parol agreement for a lease for fourteen years, and that immediately, and upon the faith of the agreement, the plaintiff expended money on the premises. Aud this, said the vicechancellor, brought the case within the principle now so well established that if the agreement was by parol and therefore insufficient, according to the statute of frauds, yet, if there was possession taken and expenditure of money upon the farm upon the faith of that verbal agreement, then that bound the defendant and was enough to induce the court to decree a specific performance.

So far as is material to the purpose of this note

tract; but they have the right to remain in possession, and cannot be dispossessed as tenants at will."

Also that the charge did not correctly set forth the legal relations existing between landlord and tenant, was calculated to mislead the jury, and was contrary to law.

Mr. George A. Mercer, for plaintiff in

error:

The right of possession was the sole issue involved, and the defense was limited to this issue.

See 12 Am. & Eng. Encyclop. Law, p. 758, u and o.

Huff v. Markham, 70 Ga. 284.

The parol evidence sets up a new and distinct contract, and is not legally admissible.

Ga. Code, 2757 (1), 3800; Sims v. Crawford, 56 Ga. 32; Brumby v. Barnard, 60 Ga. 296; Wright v. Wilson, 60 Ga. 616.

New stipulations cannot be grafted upon a written contract by parol.

See Freeman v. Bass, 34 Ga. 367, and cases cited on pp. 367 and 368; Wynn v. Cox, 5 Ga. 376; Howard v. Stephens, 52 Ga. 448.

Defendants insist that the full agreement was that plaintiff was to erect a building according to certain plans and specifications, and to lease this lot and building to them for ten years, and that defendants were to have the right to enter upon, occupy, and use this land so proved for the time stipulated.

Agreements for the creation of leases are held to be within the statute of frauds.

See 8 Am. & Eng. Encyclop. Law, p. 696; Bacon v. Parker, 137 Mass. 309.

So agreements for the mere possession of land.

Ibid.; Smart v. Harding, 15 C. B. 652; Onderdonk v. Lord, Hill & D. Supp. 129.

the facts of the cases already cited were the same as those of the following cases which sustain the principle laid down: Lester v. Foxcroft, Colles, P. C. 108; Coles v. Pilkington, 23 Week. Rep. 41; Clark v. Clark, 49 Cal. 586; McFarlane v. Dickson, 13 Grant, Ch. 263; Huron County Corp. v. Kerr, 15 Grant, Ch. 265; Morrison v. Peay, 21 Ark. 110; McCarger v. Rood, 47 Cal. 138.

Deisher v. Stein, 34 Kan. 39, is also a case in point. Here the tenant had entered under a parol contract for a lease for more than a year and it was held that he could recover damages for ejectment, But specific performance will not be decreed unless it is proved that the acts of part performance are referable to the agreement alone which is sought to be enforced. Price v. Salusbury, 32 Beav. 446: Brennan v. Bolton, 2 Dru. & W. 349.

And so the mere continuance in possession of a tenant to whom a promise of a new lease has been made, does not take the case out of the statute. Crawford v. Wick, 18 Ohio St. 202; Armstrong v. Kattenhorn, 11 Ohio, 265.

In Wills v. Stradling, 3 Ves. Jr. 378, a tenant already in possession under a lease, being desirous of making expensive alterations on the property, received, near the end of his term, a promise from the landlord for a new lease at an increased rental. He continued in possession, and expended money in improvements, and paid at the increased rate. The action was for specific performance. The lord chancellor said that the mere holding over by the tenant would not take the case out of the statute, or even call for an answer. The circumstance which he thought distinguished the case

4 Wait, Act. & Def. pp. 204, 205, 3 Wait, Act. & Def. pp. 48, 49; Taylor, Land. & T. § 60; Anderson v. Midland R. Co. 4 El. & El. 614; Dunne v. Trustees of Schools, 39 Ill. 578; Goodtitle v. Way, 1 T. R. 736; Hiatt v. Miller, 5 Car. & P. 595; Hamerton v. Stead, 3 Barn. & C. 222; Braythwaite v. Hitchcock, 10 Mees. & W. 497.

was the payment of the additional rent. Payment of additional rent, he declared to be, per se, an equivocal circumstance. But where the landlord accepted the additional rent upon the ground of the agreement, as was averred in this case, it was not equivocal at all. And it was held to be incumbent upon the defendant to say whether it was accepted on a holding from year to year, or on some other ground.

Spear v. Orendorf, 26 Md. 37, is to the same effect as Wills v. Stradling, 3 Ves. Jr. 378, where the party had been in possession and made a new agreement for an increased lease.

In Rust v. Conrad, 47 Mich. 449, specific performance was denied. This was what is called in mining districts a contract of option. Even if the court had enforced the execution of the lease, the tenant could have terminated the relation at will by giving thirty days' notice. The contract was therefore unequal and inequitable.

In Attwood v. Barbam, 2 Russ. 186, there was a displacement of the equity of the bill by the denial of the existence of the agreement in the defendant's answer. It was insisted that the plaintiff was tenant only from year to year, and that he had done many acts which would have been breaches of the covenants of the lease if any had existed. A decree of specific performance was denied.

And if there has been sufficient execution or performance of the parol contract to entitle the lessee to enforce it, the lessor has the same equity and both will be entitled to specific performance. Seaman v. Aschermann, 51 Wis. 678. A. P. W.