¶1At trial on October 22, 1990, the Court indicated that the disposition of this case would depend upon whether the burden of proof of detinue is by a preponderance of the evidence or by clear and convincing evidence.
¶2In a detinue action, the plaintiff must prove the elements of his cause of action by a preponderance of the evidence. Flax v. Monticello Realty Co., 185 Va. 474, 477 (1946); Yeary v. Holbrook, 171 Va. 266, 284 (1938); 7B M.J., Evidence, § 29. The Court finds that plaintiff has done so. Accordingly, judgment shall be entered for plaintiff requiring defendant to allow plaintiff to retrieve the property which is the subject of this suit.
¶3There was some argument as to the applicability of the statute of frauds to this case. The Court finds that the parties entered into a month-to-month lease of the subject property, and therefore, the statute of frauds is inapplicable. Budowitz v. Commonwealth, 136 Va. 227 (1923).