A. H. Birnbaum, Appellant, vs. Julius Salomon, Appellee, 22 Fla. 610

The Chief-Justice delivered the opinion of the court: The appellant filed his bill against appellee in the Circuit Court of Orange county. The bill alleges that appellant and appellee were the joint owners of a store house and lot in the city of Orlando. That on the 28th day of October, A. D. 1885, Birnbaum sold his undivided half interest in said lot to appellee, Salomon, for three thousand dollars.

That as a special inducement to sell his interest in the store house and lot Salomon agreed to rent the premises to Birnbaum from October 28th, 1885, until the 15th of April, 1886, at a mouthly rental of $83.33 3-100, and that after the expiration of the term, to wit: from and after April 15th, 1886, that he would continue to rent the premises to Birnbaum from year to year for three years, and as long thereafter as they might agree, for the monthly rental of one hundred dollars per month.

That prior to the 28th day of October, 1885, there had been differences between orator and Salomon as joint owners of said property, and that Salomon had frequently threatened orator with interfering with his right of possession of the store house, although he was holding it under a rental contract with Salomon for his undivided half. That Salomon had frequently threatened to eject orator from the premises. The bill shows that the lease from Salomon to Birnbaum from the 28th day of October, 1885, to April 15th, 1886» was formally reduced to writing and signed and sealed by both the parties.

There was no writing of any kind as to the alleged agreement by Salomon to rent the premises toBirnbaum after the expiration of the written lease. The-bill further alleges that Birnbaum had served a notice on Salomon demanding the possession of the premises.

The-bill prays that the deed of October 28th, 1885, from Birnbaum to Salomon of his one undivided half interest may be set aside and cancelled and orator declared to be one-half owner of the said premises, because of the failure of Salomon to comply with his contract, and also for an injunction to restrain Salomon, his agents, * * * from interfering with orator’s possession of the premises or selling the same. The judge granted a temporary injunction.

The defendant, Salomon, answered the bill and denied that he had agreed to rent the store house to the appellant after the expiration of the written lease; that it was his intention in purchasing the interest of Birnbaum to carry on the business of merchandising in the store house himself, but told Birnbaum that if he concluded to rent it that he would give him the preference. Upon a hearing of the cause on bill and answer the Chancellor dissolved the injunction. From this interlocutory decree the appellant prosecutes his appeal. There was no error in dissolving the injunction.

There was no proof of the allegations of the bill as to agreement to lease after the expiration of the term of the written lease, either by affidavits or otherwise. The answer positively denied such an agreement, and the answer in such a state-of proof must be taken as true. Aside from this it would seem improbable that the parties should have felt the necessity of entering into a formal written lease for the short term of six months immediately following the transaction, and left to an oral agreement the longer term of three years which was to commence at a future day.

As the decree of the Chancellor merely dissolves the injunction, and the main suit is still pending, we think it not improper to express our views of the case made by the bill. Allowing the most liberal inferences from the facts set forth, we can perceive no equity in the bill. There is ne allegation that the complainant sold his undivided half intérest in the property for less than its full value. The verbal agreement made the 28th of October, 1885, that on the 15th of April, 1886, he would execute a lease from year to year for the three years, if proven, would be void under the statute of frauds.

If it had been an agreement to lease for only one year, to commence at a future time, it would have been void for not being in writing. Crosswell vs. Crane, 7 Barbour, S. C., 191; Delano vs. Montague, 4 Cushing, 42; Wilson vs. Martin, 1 Denio, 602; Smith’s L. C., vol. 1, 435. Decree affirmed.