Benjamin Davis & al. vs. Isaac Thompson, 13 Me. 209

Weston C. J. The propositions made in writing by the defendant to Hamlen, who had been requested by Carter to procure them, and the letter from the latter to Hamlen, accepting the terms proposed, although in reference to an interest in real estate, may be evidence of an agreement in writing required by the statute of frauds, and binding upon both parties. Many of the cases cited for the defendant, sustain this. position. But a more important inquiry is, whether it amounts to a lease; or merely an agreement to demise, between which there is a clear distinction. In Baxter v. Browne, 2 Bl.

Rep. 973, an agreement for a lease, whereby the lessor did let and set, for twenty-one years from a future day, was held, from the use of these terms, to constitute a lease, such being the interest of the parties, apparent from other circumstances. In Goodtitle ex dem. Estwick v. Way, 1 T.

R. 735, a paper, containing words of present contract, “ and further, the said Earl of Abingdon doth hereby agree to let, and the said Richard Way agrees to rent and take,” upon terms and for a period set forth, one of which was, that Way should enter into the possession of the premises immediately, was held to be merely an agreement for a lease, there being a further stipulation in the same paper, that leases W'ith the usual covenants should be made and executed, between the parties, within a limited period. And in Roe ex dem. Jackson v. Ashburner et als. 5 T.

R. 163, it was held, that an agreement that another should enjoy, did not amount to a lease, if the parties intended that something further should be done. To the samo effect, is the case of Doe ex dem. Broomfield v. Smith, 6 East, 530, and Morgan ex dem. Downing v. Bissell, 3 Taunton, 65. There are other cases, where an agreement has been construed as a present lease, where it was manifest the parties so intended ; although it provided for futuro instruments of lease, by way of further security.

In the case before us, Damien had been requested by Carter to obtain from the defendant in writing his best terms for the premises. Accordingly the defendant stated in writing to Dam-len, upon what terms he would take them, for a further period of two years. A copy of this letter having been furnished by Damien, to his principal, Carter, the latter replied by letter to Damien, that the proposals were acceptable to him, and requesting him as his agent to conclude the bargain accordingly. It would be going a great way, to hold that this correspondence amounted to a lease.

It might be evidence of an agreement for a lease; although it consisted of a proposal in writing to the agent of one party, the acceptance of which was not communicated in writing to the other party, but to the agent of the same party. Carter, in his letter to Damien, did not regard the business as finished, by his acceptance of the terms, but authorized and requested Ham-len, as his agent, to close the bargain. This was an authority to him to make a lease ; and clearly indicated that something was to be done.

The defendant had no written evidence of his right to enjoy the property, which he had a good right to expect, and which Carter must be understood to have authorized Hamlen to furnish. For although he does not prescribe in what form, he was to close the bargain, yet it must be inferred, that authority was given to do it in a manner, which would be binding at law. In Allen v. Bennett, 3 Taunton, 169, Mansfield C.

J., said, that there had been many cases in chancery, some of which he thought had been carried too far, where the court had picked out a contract from letters, in which the parties never certainly contemplated, that a complete contract was contained. And we are of opinion, that if an agreement for a lease may be picked out of the letters under consideration, they do not amount toa lease; and that the parties contemplated a close of the bargain by proper instruments.

As the agent, Hamlen, did not discharge the trust confided to him in a manner which was effectual at law, it may admit of some question, whether what he said to the defendant gave him any rights whatever; and if it did not, he remained only tenant at sufferance. But assuming that he was thereby constituted tenant at will, it is insisted that it has the effect of a tenancy from year to year; or of such a character, as to entitle the defendant to six months notice to quit. In Ellis v.

Paige et al. 1 Pick. 43, the English cases, in regard to tenancies' from year to year, were held to be inapplicable here, where parol leases have the effect of leases at will only; and such we understand to be the law and practice of this State. It results, as incident to a tenancy at will, that it may be determined at the will of either party; and that neither is obliged to give notice of a future day, when the estate shall determine. And this is understood to have been stated by the court in Ellis v. Paige. It is true, that in Coffin v. Lunt, 2 Pick. 70, Parker C.

J., says it is a difficult question, to determine whether a tenant at will is entitled to notice to quit, stating however that the English and New-York cases do not settle the point here, where the statute is different. Whatever doubt may be thrown upon the question by this intimation, the opinion of Wilde J., by whom the judgment of the court was delivered in Ellis v. Paige, has not been overruled ; and it is in accordance with the nature and incidents of an estate at will. Coke Lit. 55, a.; Bl. Com. 143.

We accede to the doctrine, in which all the court concurred in that case, that where the lessor determines the estate, the lessee is entitled to the emblements, and to a reasonable time for the removal of his family and property, with free ingress, ogress and regress for the enjoyment of these rights; and this is no new principle, but in conformity with the ancient law. If the defendant was tenant at will, in our judgment, when the plaintiff notified him to quit and surrender up the premises, his estate was determined.

And we are further of opinion, that the defendant was liable to this process, having held more than thirty days after he had notice in writing to quit; and that the statute intended that this remedy should be afforded upon written notice given, after thirty days, if the estate had determined, when the notice was given. We do not assent to the correctness of the position, taken by the counsel for the defendant, that notice to quit under the statute could not be given, or the thirty days begin to run, until the tenant had first had a reasonable time to remove, after the determination of the estate.

The thirty days’ notice is itself the reasonable time required, and must have been so regarded by the statute. The Judge below was warranted in deciding, as a matter of law, that the letters did not amount to a lease, without the aid of the jury; but the result is none the less correct for having their sanction. Exceptions overruled.