N. Y. Rep.]

Statement of case.

"LONDON, Sept. 24th.

"DEAR SIR.I would have been in New York before this. * * * However, I am due in New York in the first week. of November, and will call and see you. Have not offered the lease to anyone. Glad to hear you are doing well.

"Very truly,

"C. W. BONYNGE."

Early in November the plaintiff received from the defendant the following letter:

"42 PRINCE'S GATE, LONDON, Oct. 27, '89. "DEAR MR. BAER.-I expect to be in New York a week or so after this letter reaches you; and if you wish to renew a lease, please have the names of the parties you offered to go on your security ready to submit, as I will be there but a short time. I hope to find the building painted, and that the roof has been put in good condition as agreed on. I need not tell you other people want it. Hope you have a good business and doing well.

"Very truly,

"C. W. BONYNGE.”"

The defendant returned to New York the first week of November, when he called on the plaintiff and told him that he would let him know the terms of the lease within a few days; that he would get an appraiser and see what the lease was really worth. A few days afterwards the defendant gave the plaintiff the following documents:

"FIFTH AVENUE HOTEL,
"MADISON SQUARE, NEW YORK,
Friday.

"DEAR MR. BAER. I had a valuer to-day to look at building and situation, a man of very good judgment, and I asked him to make a fair estimate of the rent for the next ten years. I told him what you were paying and what I thought it worth. He said I was much too low; that since Salter took that lease property and rents had gone up there fully forty per cent, and he put the lease of the same nature

as the present at $14,000 a year. So I have made up my mind to drop $1,000 off this and make it $13,000 for the next ten years. You to make any terms you like about the upper portion of the building, but you must let me know what the rent of the basement is to be and have it agreed on; from what I hear I would not make his lease less than $3,000 a year.

"Now let me tell you what I find. When Salter went in there the rent from the basement was only $900 the first year, then $1,200, and the rooms up stairs $2,500, making, say, $3,500 in all for the first two years. Take his rent and taxes at $12,000 and deduct the $3,500, and you find Salter paid $8,500 for his part ten years ago. Now, if you wish to have it at $13,000, say, with taxes, $15,000, deduct basement, $3,000, rooms, $3,500, making $6,500, making your rent just the very same as Salter paid ten years ago. This is my conclusion after getting two very good opinions on it. I inclose a card with my ideas of the lease.

"Yours truly,

"C. W. BONYNGE. "We think inside of ten years this lease will be a very low

one."

"Rent, $13,000 with, in addition, to pay all taxes and improvements. Roof to be painted every year, outside of building every three years. Rent in gold coin to be paid July 1st, October 1st, January 1st, April 1st. No structures to be allowed in or about the building nor on the roof. No flagstaffs or anything similar to be permitted.

"Violations to work forfeiture of lease. No transfer of lease without consent of owner. Two good signers to be provided. Taxes, water to be paid on maturity and receipts for same furnished the owner. No objectionable business to be allowed on premises.”

The day following the receipt of these documents the plaintiff told the defendant he would accept the terms offered, and a few days afterwards the defendant procured to be drafted in duplicate a proposed lease, the material parts of

which are as follows: "Lease dated November 28, 1890, between Rodie S. Bonynge, of St. Louis, Missouri (but now temporarily residing in London, England), and Albert Baer, duly executed and acknowledged by said Baer, demises the lot of land and building 922 Broadway, New York city, for the term of ten years from May 1st, 1891, at the yearly rent of thirteen thousand dollars in gold coin, payable in quarterly payments on the first days of July, October, January and April, containing the usual covenants and the following special provisions: That the tenant will pay on maturity the annual rent or charge for Croton water, and deliver to the landlord proper receipts showing such payment; that the tenant will also pay on maturity all taxes and deliver proper receipts showing such payment; that the tenant will, at his own expense, do all the repairs and keep and maintain the premises in good condition, and will not permit any flagstaff or poles on the roof, will paint the roof once in each year, and the whole building inside and out once in every three years, the first painting to be completed. by August 1, 1891; that the tenant will not assign the lease or underlet without the written consent of the landlord, and will not use the premises for any purpose deemed extra hazardous or a nuisance, and that if default be made in any of said covenants, the landlord may re-enter and re-possess the premises. There are also covenants that in case the premises be destroyed by fire the landlord shall have the right to cancel the lease and apportion the rent, unless she elect to repair, in which case the repairs shall be made with reasonable dispatch, and during the period of repairs no rent shall accrue; also, that in case of an assessment for public improvement six per cent interest on the amount of such assessment shall be added to the rent."

The plaintiff signed the proposed lease and procured Samuel Lichenstein and Lewis Samuels to execute and acknowledge the guaranty indorsed thereon. Thereupon the plaintiff personally mailed one of the duplicates so executed to the defendant's wife at London for execution by her. A few days after the duplicate had been mailed the defendant told the plaintiff

that he should write and advise his wife not to execute it because the plaintiff refused to lease the basement to Mr. Streuver for ten years at not less than $3,000 per year. The defendant's wife refused to execute the lease, and December 20, 1890, this action was brought, and May 1, 1891, the plaintiff vacated the premises which had been leased to another person.

Albert Stickney for appellant. Aside from the question under the Statute of Frauds, and the one arising from defendant's agency, the evidence shows a valid agreement, in its terms binding only the defendant to give plaintiff a lease, in consideration of plaintiff's agreement to make repairs and alterations and execute the lease on his part, with full performance by plaintiff accepted by defendant. (L'Amoreux v. Gould, 7 N. Y. 349; Willets v. S. M. Ins. Co., 45 N. Y. 45; Sands v. Crooke, 46 N. Y. 564; White v. Baxter, 71 N. Y. 254; Miller v. Mackenzie, 95 N. Y. 575; Bohm v. Goldstein, 53 N. Y. 634; Townsley v. Sumrall, 2 Pet. 170; Rector v. Teed, 120 N. Y. 583.) There being an otherwise valid contract, fully performed by plaintiff, with performance accepted by defendant, the defendant's two letters, with the card mentioned and inclosed in the second, constitute a sufficient "note or memorandum in writing," within the Statute of Frauds. (Ballard v. Walker, 3 Johns. Cas. 60; Clason v. Bailey, 14 Johns. 484; M'Crea v. Purmort, 16 Wend. 460; Justice v. Lang, 42 N. Y. 493; Raubitschek v. Blank, 80 N. Y. 478, 482; Mason v. Decker, 72 N. Y. 595, 598; Worrall v. Munn, 5 N. Y. 229, 246; Sievewright v. Archibald, L. R. [17 Q. B.] 103, 114; Peabody v. Speyers, 56 N. Y. 230; Tallman v. Franklin, 14 N. Y. 584; Peck v. Vandemark, 99 N. Y. 29; Pinckney v. Hagadorn, 1 Duer, 89; Barney v. Forbes, 118 N. Y. 580, 584; Beckwith v. Talbot, 95 U. S. 289; Thompson v. Menck, 4 Abb. Ct. App. Dec. 400; A. Co. v. Mayor, etc., 55 N. Y. 495; Barry v. Coombe, 1 Pet. 640; Mentz v. Newwitter, 122 N. Y. 491; Bailey v. Sweeting, 9

C. B. [N. S.] 857; Gibson v. Holland, L. R. [1 C. P.] 1; Mactier v. Frith, 6 Wend. 102, 114; Trevor v. Wood, 36 N. Y. 307; Howard v. Daly, 61 N. Y. 362; Reuss v. Picksley, 4 H. & C. 588; Dana v. Fiedler, 12 N. Y. 40; Ryerss v. Wheeler, 22 Wend. 148; Fish v. Hubbard, 21 Wend. 652; Waring v. Ayres, 40 N. Y. 357; McDonald v. Longbottom, 1 E. & E. 977; Shardlow v. Cotterell, L. R. [20 Ch. Div.] 90; Mead v. Parker, 115 Mass. 413.) Inasmuch as both the oral agreement and the written memorandum, by their terms, make no mention of any principal, and purport to bind only a defendant personally, even assuming that plaintiff understood defendant to be an agent, the mere fact of agency is not competent to discharge the defendant's personal liability. (Paice v. Walker, L. R. [5 Ex.] 173; De Witt v. Walton, 9 N. Y. 571; Pumpelly v. Phelps, 40 N. Y. 59; Moss v. Livingston, 4 N. Y. 208; Schmittler v. Simon, 101 N. Y. 554, 559; Tanner v. Christian, 4 El. & Bl. 591; Lennard v. Robinson, 5 El. & Bl. 124; Cooke v. Wilson, 1 C. B. [N. S.] 153; Mills v. Hunt, 20 Wend. 431; Nash v. Towne, 5 Wall. 689; Orchard v. Binninger, 51 N. Y. 652; Phelps v. Borland, 30 Hun, 362; Lincoln v. Crandell, 21 Wend. 100; A. C. Bank v. Leonard, 40 Barb. 119; Chappell v. Dunn, 21 Barb. 17; Higgins v. Senior, 8 M. & W. 834; Jones v. Littledale, 6 Ad. & El. 486.) The point that the agreement to lease was on a condition is directly in conflict with the evidence. (Woolsey v. Funke, 121 N. Y. 87; Nicholl v. Sands, 131 N. Y. 19; Bracco v. Tighe, 75 Hun, 140; McMasters v. W. C. M. Ins. Co., 25 Wend. 379; Rogers v. T. I. Co., 6 Paige, 583.) This case is one of a virtual fraud by defendant, wherein the plaintiff has overwhelming equities. (Malins v. Brown, 4 N. Y. 403; Freeman v. Freeman, 43 N. Y. 37; Miller v. Ball, 64 N. Y. 286; Driggs v. Dwight, 17 Wend. 71; Dodds v. Hakes, 114 N. Y. 260.)

George L. Rives for respondent. The defendant having acted only as agent was not liable personally. (Mechem on Agency, $$ 550, 551; Ogden v. Raymond, 22 Conn. 379;