Schluderberg v. Dietz

Parke, J., delivered the opinion of the Court. The appeal in this case is from a decree for the specific performance of an agreement to lease a freehold property in Baltimore. Isaac J. Dietz filed the bill of complaint against George Schluderberg, Anna K. Lamp and Anna E. K. Tillinghast, the owners, and Margaret Schluderberg, the wife of George Schluderberg, and J. George Lamp and Samuel Tillinghast, the respective husbands of the other two owners. The undisputed testimony is that the land in question was improved by a three story building and had been leased by the owners to a certain Isadore Lippman for a term of five years ending in March, 1928; and that the plaintiff became, in the latter part of February, 1923, the sublessee of the first-floor of the building, where he carried on a retail business in dry goods and notions.

It is, also, uncontroverted that the sublessee, who had learned that the owners would not renew the term of the lease, began negotiations for the rental of the whole property, but he asserts, and the owners deny, an agreement to lease was made. The owners resist the specific performance of the alleged contract on the grounds that it was within the Statute of Frauds, since it was not in writing, and the subject matter of the contract was a lease for a term ⁵⁴⁹ of five years and there had been no part performance; second, that the party with whom the plaintiff agreed was not the agent of the owners; and, third, that the alleged agreement was too uncertain to be specifically enforced. As pointed out in Browne on the Statute of Frauds, secs. 478-480, there is a difference to be noted between the continuing in possession, and the taking of it; and, so, a mere continued holding by a tenant, or the payment of additional rent, or improvements made upon the premises by the tenant, continuing in possession, are said to be of themselves of equivocal import, where a claim is set up of a positive agreement for a new lease, since every one of these circumstances, it is argued, may be naturally and properly referable to the old tenancy. However, in Pomeroy on Specific Performance (3rd Ed.), sec. 124, p. 316, the result of the modern decisions is thus stated: “It is, therefore, now settled, after some expressions of doubt, and with a few conflicting decisions, that possession by a tenant after the expiration of his former term, and payment by him of an increased rate of rent, are together a part performance of a verbal contract for a renewal of the lease.” Spear v. Orndorff, 26 Md. 37, 44, 45 ; Drury v. Conner, 6 H. & J. 288 .

Compare Rosenthal v. Frieburger, 26 Md. 75 ; Billingslea v. Ward, 33 Md. 48, 54, 55 ; Semmes v. Worthington, 38 Md. 298, 318-327, 329, 330 ; Wells v. Stradling, 3 Ves. 378; Nunn v. Fabian, L. R. 1 Ch. 35; Miller v. Sharp, [1899] 1 Ch. 622. Whatever significance is to be given to this distinction, there is, however, no occasion for its consideration on the facts of this record. In the present case, the continuance in possession by the plaintiff was not referable to his original tenancy, since that was a holding of a part of the premises under a sublease from the lessee of the owners, while his possession, after March 20th, 1928, was of the entire premises under the parol contract with the owners for a lease. So, the plaintiff’s possession was under the oral contract of a different origin and subject matter than that of his original term, and was unquestionably attributable to the parol con ⁵⁵⁰ tract.

Not only is the possession enlarged from a part to the whole, but the plaintiff’s rent is increased because he, under the contract, becomes entitled to the enjoyment of the whole property, and the defendants agree to furnish the building with a suitable equipment for heating. On March 20th, 1928, the plaintiff, pursuant to this agreement to lease,