Spear v. Orendorf

Bowie, C. J., delivered the opinion of this Court. The appellant having instituted summary proceedings against the appellee, to rem >vo him from premises which he claimed to hold under a parol contract for a lease, the latter filed his bill for specific performance, and as auxiliary ⁴² thereto, prayed for an injunction, from the order granting' which this appeal is taken. The bill alleges that the appellee, being in possession from the 1st of February, 1864, to 1st of February, 1865, under a previous letting at a reduced rent, it was (towards-the close of the term), agreed, between the appellant and appellee, that if the latter would pay the former the increased rent of $1,500 per annum, the appellant, Spear, would execute to the appellee, Orendorf, a lease of the-premises for the term of one year, with the privilege of extending the same two- or three years, etc.; that confiding in this agreement, the tenant did not attempt to cause the lease to he reduced to writing for some-short time after the period at which the tenancy was to begin, to wit, the 1st of February, 1865, but continued in possession of the premises in the faith that the said Spear would execute the lease at any time when tendered to him, as he had engaged and promised to do ; that some time after he was surprised at receiving from Spear for his, the tenant’s execution, the paper filed, marked S. 0., No. 3, which provided for a lease for one year, with the privilege-of two years, and not the privilege of two or three years, etc.; and that the tenant paid the rent of$1,500 for the year 1865, notwithstanding which, he has received notice to quit on the 1st of February, 1866, and proceedings at law have been instituted to remove him, which he prays may be enjoined. The complainant charges he is entitled to-a written lease-from Spear, for his protection and defence, and for the purpose of giving to him a term of three years iu the property from the 1st of February, 1865 ; and if he is not entitled to as. term of three-years, as he insists he is-,, he is entitled to a lease for one year from the date aforesaid, with the privilege-of a second year, &c. ⁴³ He avers, that he paid the rent of $1,500 for the last ’year, as part and parcel of the agreement, and in performance and consideration thereof, and not-otherwise, and that he hath further carried oat the agreement in all particulars, and has remained in and occupied and kept the said premises in such performance and on such-consideration, ■only.

Wherefore he prays specific performance of the ■agreement on the part of the said Spear. The injunction being ancillary to the relief prayed, if the -case made by the bill is such that a Uourt of Equity would not, on final hearing, grant the principal relief upon full proof of the allegations, the injunction should be dissolved. Geiger vs. Green, 4 Gill, 475. It is objected on the part of the appellant, that the contract as charged is uncertain, unreasonable and wanting in mutuality, and therefore should not he performed.

The bill professes to set out by specific allegations, and by reference to exhibit ISTo. 2, “the true terms of the agreement and stipulations contracted for” between the complainant and defendant. If such an agreement had been reduced t© wilting and executed, there can he no donbt it would be sufficiently certain for all purposes. The option of extending the term two or three years, was a privilege to he exercised by the tenant during the term, not to be 'fixed by Mm as a part of the lease. Such privileges are not uncommon, and though dependent on the will of one of the parties, they do not impair the mutuality of the contract.

Mutuality of a contract means an