[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 387 In August, 1876, the plaintiff entered into a written contract with the defendant whereby, in consideration of $1,200 per year payable in monthly installments of $100 each, he was to have the exclusive right to place advertisements in its cars *Page 388 for two years from the 30th day of December of that year. In pursuance of that contract he placed and kept advertisements in the cars for the two years, and paid the stipulated compensation. After the expiration of the two years, without any further agreement, he continued to place and keep advertisements in the cars until May 1, 1881, making the monthly payments, when, in pursuance of a notice requesting him to remove the advertisements from the cars on or before that day, it removed them from its cars and refused to permit him to place any more therein.
The plaintiff claims that by permitting him to keep his advertisements in the cars after December 30, 1880, and taking pay from him, the defendant must be held by implication to have renewed the original contract for another term of two years from that date; and that at least by permitting him to enter upon another year in 1881, it was bound to permit him to keep his advertisements in the cars for the whole of that year.
This action was brought to recover damages from the defendant for its refusal to permit the plaintiff to keep his advertisements in the cars after May 1, 1881. He was defeated at the trial and then appealed to the General Term and to this court.
The written contract between the parties amounted either to a license or to a lease (it is unimportant to determine which), to use the defendants' cars, personal property, for a certain purpose. The law did not imply a renewal of the contract for a term of two years, because such a contract which was not to be performed, and could not be performed within one year, not being in writing, was void under the statute of frauds. The law will not imply an unwritten contract which the parties themselves could not make without writing. It will sometimes imply an obligation on the part of a person who has received a benefit under a contract condemned by the statute of frauds, to make compensation to the other party. An implied contract is one which the law infers from the facts and circumstances of the case; but it will not be inferred, so far as I can *Page 389 conceive, in any case where an express contract would for any reason be invalid. The law will not make that valid without a writing which the law requires should be in writing.
Contracts void under the statute of frauds will sometimes be specifically enforced in equity, not because they are treated as valid, but for the prevention of fraud.
This is not an equitable action for the specific performance of any contract or to compel the execution of a valid lease or contract on the part of the defendant. No such relief was claimed in the complaint or upon the trial. The action is to recover damages for the breach of an alleged valid agreement, and to maintain it the plaintiff must show a valid agreement.
The claim of the plaintiff that he was entitled to the benefit of the contract for the whole of the year subsequent to December 30, 1880, upon the ground that there was an implied contract for the whole of that year, is also unfounded. If the cars had been real estate leased to him, his claim would have foundation. A tenant of real estate, permitted to hold over after the expiration of his tenancy, may hold for another year upon the same terms. The landlord has his option to treat the tenant as a trespasser or as a tenant for another year. But if he takes rent, or otherwise assents to the holding over, then the tenant has the rights of a tenant for another year. (Schuyler v. Smith,51 N.Y. 309.) These are technical rules applicable to real estate, which have never been applied to personal property, and so it was held in Chamberlain v. Pratt (33 N.Y. 47). To the reasoning of that case nothing needs to be added. By using the cars after the expiration of the first term of two years, the plaintiff acquired no new rights. It was always in the power of the defendant to put an end to his occupancy of its cars at any time.
The plaintiff also invokes the doctrine of estoppel in pais against the defendant, but I see no basis for it to rest upon. For aught I can see his damage and his embarrassment would have been just as great if it had removed the advertisement from its cars on the 30th day of December, 1880. It did nothing to mislead him. He knew that his contract had *Page 390 expired, and that he was using the cars at the will of the defendant, and it simply exercised a right which he was bound to know it had.
Therefore, without giving our reasons at greater length, we are of opinion that the judgment is right and should be affirmed, with costs.
All concur.
Judgment affirmed.