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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 398 If the conclusion of the General Term in this case, that the defendant did not bind himself personally, is correct, it determines the result without need of a consideration of the question raised as to the effect of the Statute of Frauds. The action against him was to recover damages for a breach of an agreement to give plaintiff an extended lease of the premises occupied by him. A former owner of the property had given a lease which, by an assignment, had passed to the plaintiff, and the property itself had been conveyed to the defendant's wife. That fact was well known to the plaintiff and when he asked the husband for a renewal of his lease it plainly implied that his contract was to be with the wife, as owner, and that his negotiations with the husband were steps to that end.
At their conclusion the proposed new lease was drawn between the wife as lessor and the plaintiff as lessee, and the latter insisted on himself mailing it to her in London, for the purpose of its final execution.
These facts tend to show that the only contract contemplated between the parties was one between plaintiff and the wife of the husband, and that the understood attitude of the defendant was that of her adviser, upon whose judgment as to the terms of the lease she was expected to rely. The letter and memorandum of the defendant, read in the light of these facts, disclose no other intention or purpose on his part, and justify no other interpretation on the part of plaintiff.
He could hardly misunderstand what was explicitly stated, that the defendant was giving his ideas of the lease, that is, his judgment of the terms and conditions which his wife *Page 401 ought to require, and which he should advise her to insist upon.
There is no agreement, either in letter or memorandum, that the defendant will give a lease or procure one to be executed. Conceding, that although known to be the agent of his wife and acting in that capacity, he might nevertheless have bound himself personally, it is quite apparent that he did not do so by any language having that meaning, and that all he said and wrote was in the character of an adviser of his wife, and as an effort to agree upon terms which he could advise her to accept. There is no sufficient proof of any prior verbal agreement which bound anybody. That fact is entirely evident from the subsequent negotiations in which, for the first time, the terms of the new arrangement were discussed, and which went upon the concession that those terms remained to be agreed upon.
They were agreed upon as between the husband and the plaintiff, but were understood to bind nobody until accepted by the wife, who owned the property, and to be evidenced by her execution of the lease. Undoubtedly, both parties assumed that the terms which were satisfactory to the husband would be so to the wife and lead her to execute the lease, but he did not bind himself to give or procure a lease, and both parties understood that the actual contract when made was to be between the wife and the plaintiff. All that preceded that was preliminary and tentative, and understood to be dependent upon the ultimate assent of the wife, as owner of the land. That was the view of the General Term, and we think it correctly interpreted the negotiations between the parties.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *Page 402