This case is here on error to a judgment rendered by the court of common pleas of Hamilton county, reversing a judgment of the municipal court of Cincinnati.
In the municipal court Walter V. Hallerman brought suit against Jeanette Hodesh, plaintiff in error here. *Page 279 The amended bill of particulars, among other things, recites that in the latter part of 1925 Jeanette Hodesh was the owner of certain garage premises located on Gilbert avenue, city of Cincinnati, Ohio; that on November 15, 1925, he, Hallerman, entered into a written lease with the defendant, Jeanette Hodesh, for a term of six months, with a privilege of renewal for four and one-half months (years?), commencing December 1, 1925. He complains in the bill that Hodesh has refused to give possession of the premises under the lease and has refused to accept rent, thereby breaching the contract of lease.
In his claim for damages for the breach plaintiff recites that he entered into a contract for the purchase of the garage business from one A.E. Short, who was in possession of the premises at the time under a lease, and alleges the breach by Hodesh; that as a result of the failure of the defendant to permit plaintiff to occupy said premises, plaintiff was forced to pay Short the sum of $776.90, and was compelled to expend $200 for attorneys' fees and expenses, all of which were due to the failure of the defendant Hodesh to carry out the terms of the written lease entered into with the plaintiff.
The defendant, Jeanette Hodesh, answered, admitting she owned the garage premises in question, and denied the other allegations in the amended bill of particulars. This, of course, denied the execution of the lease.
The lease was introduced in record, and provides, among other things: "The lessee shall have the right and privilege of renewing said lease for a period of four years and six months beginning at the expiration of the lease, provided that the lessor is the owner of said premises at that time, at a rental of six hundred dollars per month."
The lease is signed and executed by Walter Hallerman and Isadore Hodesh. *Page 280
The record discloses that the defendant, Jeanette Hodesh, did not know of the execution of the lease by Isadore Hodesh, and as soon as the lease was called to her attention she repudiated same and refused to give possession under it.
The claim of the plaintiff was that Isadore Hodesh was the husband of Jeanette Hodesh, managed the garage, attended to the renting of the same, and collected the rents, and that the lease was executed by Isadore Hodesh for the undisclosed principal, and sought to show by oral evidence that Isadore Hodesh executed the lease for an undisclosed principal, Jeanette Hodesh, and that she was therefore estopped from denying the validity of the lease as her own. The trial court excluded, in the main, evidence tending to prove such agency, and at the close of the case rendered judgment in favor of the defendant, Jeanette Hodesh. Hallerman prosecuted error to the court of common pleas, which court reversed the judgment of the municipal court, apparently on the question of agency. From that judgment Hodesh prosecutes error to this court, seeking a reversal of the judgment of the court of common pleas and an affirmance of that of the municipal court.
There are several specifications of error presented. Among them is the claim that the statute of frauds presents an absolute bar to the claim that there is any validity in the lease, and that by reason thereof the question of agency in the form presented is not available.
We will first take up the question of the statute.
Section 8510, General Code, provides: "A deed, mortgage, or lease of any estate or interest in real property, must be signed by the grantor * * *."
It must be borne in mind that the lease in issue was not signed by the owner of the property, Jeanette Hodesh. To overcome this obstacle, as heretofore stated, Hallerman seeks to invoke the rule of estoppel *Page 281 as against her by virtue of the fact that the lease was signed by Isadore Hodesh; that he being the husband of Jeanette Hodesh and the manager of her property, she would not be heard to deny the lease.
Section 8512, General Code, provides: "A power of attorney for the conveyance, mortgage, or lease of any estate or interest in real property, must be signed, attested, acknowledged, and certified in the same manner as deeds, mortgages, and leases."
We have therefore the situation of an agent signing the lease in his own name, without any written authority therefor. This situation furnishes a complete bar to any claim as against the owner of the property, in this case Jeanette Hodesh.
It is suggested in the brief that Section 8517, General Code, is a saving clause, in that the lease is a temporary lease, and Section 8517 provides: "Nothing in this chapter contained shall affect the validity of any lease * * * for any term not exceeding three years * * *."
And it is argued that the lease being for six months, with the privilege of renewal for four years and six months, does not take the lease out of the class of temporary leases, but that it remains a lease for six months. This contention is answered in the case of The People's Building, Loan Savings Co. v.McIntire, 14 Ohio App. 28, at page 31, wherein this court held: "The option provided in the lease for four consecutive years must be held to be `an interest in real property,' and would bring the lease within Section 8510 of the statutes, requiring acknowledgment and attestation of the same."
This is further supported by the case of Toupin v. Peabody,162 Mass. 473, 39 N.E. 280, where in the course of the opinion the court states: "A lease for five years, with the right to have a renewal for five more, is as much within the mischief which the statute seeks to remedy as a lease for a term of ten *Page 282 years, and the reasons for requiring the latter to be recorded apply equally to the other, so far as the renewal term is concerned."
Our conclusion is that the lease is within the terms of Section 8510, General Code, requiring the same to be signed by the grantor, or her agent, under power of attorney executed in accordance with Section 8512, General Code.
There being no binding lease upon Jeanette Hodesh, the owner of the property, she was not and could not be liable for a breach.
Since this determines the case, the other questions are not considered.
The judgment of the court of common pleas will be reversed and that of the municipal court affirmed.
Judgment reversed.
ROSS, P.J., and CUSHING, J., concur.
ON APPLICATION for rehearing.