Thomas, May & Co. v. Drennen

HEAD, J. Conceding that defendant’s plea number 2 properly set up matter of special defense, it is clear, under the circumstances, that the ruling of the court sustaining the demurrer to it, did the defendants no harm. 'There were grounds of demurrer testing the sufficiency of the plea as a defense to the action followed by the last ground assigned, which was that, “defendants can have all the benefits of said plea under the general issue.” The court sustained the demurrer expressly on this ground. The general issue was interposed, and the record affirmatively shows that defendants, under it, were accorded full benefit of the special defense set up in plea number 2. There is, in the case, no element of an eviction of the defendants, as lessees, by plaintiff, their lessor. After defendants quit the store, the plaintiff, in pursuance of an express agreement in writing with them, entered into for the express purpose of preventing an eviction, leased it, in writing, for a year to the Woolridge Stove Co. through W. L. Kelly, its general manager. The particular terms of this lease were assented to, in writing, by the defendants. There was no clause against sub-letting. Afterwards, and without taking possession of the store, the stove company, through Kelly, sub-let, for its term, to Drennen & Co., a partnership composed of plaintiff and another, who occupied it for the year and paid the agreed rent (the same the stove company had bound itself to pay) to plaintiff, who gave defendants credit for it according to the written agreement which had been entered into between plaintiff and defendants. There was, confessedly, no fraud or collusion in the matter. The sub-letting took place because the lease of the stove 'company, effected through Kelly, its manager, was not satisfactory to the company. That company had the right to sub-let to Drennen & Co., or to any one else, and the fact that it did so, and that plaintiff was a member of the lessee firm, constitutes no semblance of [675] an eviction of the defendants by the plaintiff, the whole matter having been conducted without fraud or collusion of any kind. It is insisted that the lease to the stove company never became binding upon it, because Kelly had no authority to make the contract, and the company refused to ratify it; wherefore the sub-letting by Kelly, for the company, to Drennen & Co. was of no force, and that Drennen &Co. (one of whom was the plaintiff) went into and held possession, of their own wrong, in violation of the written agreement between plaintiff and defendants, and that this constituted an eviction of defendants by plaintiff. If the conclusion be regarded as sound, the record does not support the premises upon which it rests. The undisputed evidence shows that Kelly was the general manager of the Woolridge Stove Co. of Memphis, Tenn., for their Birmingham store, selling stoves &c. in Birmingham, and that, as such, he duly executed the lease. This fact establishes his authority. There is not a word of testimony that he was not authorized. The argument that he was not rests alone upon the fact that sometime after the execution of the lease he reported to plaintiff that the company had refused to ratify his contract, which report, of course, proved nothing. Moreover, Kelly, manifestly, executed the lease upon the representation that he was authorized, and plaintiff acted upon it. If he did not bind his supposed principal by reason of the want of authority, he bound himself, and likewise bound himself when he sub-let to Drennen & Co. — Ware v. Morgan, 67 Ala. 461; 1 Am. & Eng. Encyc. of Law, (2d ed.), p. 1124. But there is no pretense in the record that he was not authorized. — Phillips & Buttorff Mf'g Co. v. Whitney, 109 Ala. 645. There is nothing in the suggestion that the lease to Drennen & Co. was within the statute of frauds because it did not describe the house. It sufficiently referred to the house described in the written agreement on the back of which the lease was executed. The judgment of the circuit court was correct, and is affirmed.