Trapnall v. Merrick

Mr. Justice Fairchild delivered the opinion of the court. Mrs. Trapnall sued Merrick in an action of debt. In the first count in the declaration she alleged that, on the 1st of January, 1855, she gave to Merrick an instrument in writing leasing to him the Byrd ware-house for a term of years not exceeding three, at two hundred dollars a year, payable quarterly, by virtue of which Merrick took possession of the ware-house and used it for the term, and that he has not paid the rent mentioned in the lease or any part thereof. The second count is like the first, except that it describes the lease as having been executed under the hand and seal of the plaintiff. The defendant demurred to the declaration because the lease was not charged to have been signed by him, or by any person for him, and because the lease declared upon, would not sustain an action against the defendant. i There is a special cause of demurrer to the second count, that it does not aver that the defendant entered into possession under the lease. The action was brought-the 9th of January, 1850. The court sustained the demurrer to the declaration; the plaintiff rested upon the demurrer; judgment was given against her, and she appealed. The second count is not subject to the objection specially assigned to it in the demurrer. The language of the declaration is, “ by virtue of which lease and demise entered into the said ware-house and premises, on said 1st January, 1855, and was possessed thereof and used and occupied the same from thenceforth continually, until the end of said term.” The omission of the word “ defendant ” before “ entered,’’ was not a failure to aver that it was the defendant that entered, into possession. It was evidently a mistake of the pleader not to have inserted that word, and no other, and the meaning was as plain without the word as with it, and the Circuit Court ought not to have entertained and probably did not entertain any such objection. The objection made in the demurrer, that no action upon the lease under seal, or instrument of writing mentioned in the declaration, can be had against the defendant, is not applicable to this case, as this action is not brought upon the lease or writing, but simply for the rent then reserved by the plaintiff, and by the defendant agreed to be paid, as shown by his acceptance of it, and taking possession of the ware-house and occupying it for the term. The statement of the lease or written instrument was but inducement to the main averments of Merrick having entered into possession of the ware-house, under an agreement to pay a certain rent, and of his violation of his agreement — and the declaration is strictly according to form, and more formal than necessary in making excuse for want of proferí of the lease and instrument in writing. ^ The action of debt was always maintainable for rent, for an agreed certain sum, and whether the demise was by deed, by an unsealed writing, or by word of mouth. And debt or assumpsit for use and occupation was not needed only where the occupation was'riot at a fixed rent or for a fixed time. > The law upon this subject is clearly stated, and is declared to be fully settled in a case decided in the King’s Bench, in 1841. Gibson vs. Kirk, 1 Adolph. & Ellis N. S. 850; and the case is quoted and fully endorsed in a recent American, work of high authority. 3 Rob. Pr. 375; see also 1 Ch. Plg. 110, 11th Am. Ed. And to hold that Merrick, after accepting a written lease from Mrs. Trapnall, in which it was stipulated that he was to have the use of the ware-house for three years, at the yearly rent of six hundred dollars, payable quarterly, and after having it the full term, is protected from payment of the rent, because he did not sign the lease, would be shocking to good sense and morals, and, what is more to the purpose in this suit, illegal. For it cannot be legal for a man, after having had the full benefit of a valid contract, to refuse to pay the promised consideration. The statute of frauds affords no defence to Merrick. He is not sought to be charged on any contract for leasing the.warehouse, or the ground on which it is, but on a contract to pay rent, and he must pay it, or be declared liable by law to pay, ¡unless he can show reason to the contrary upon a contest of the merits of the case. Let the judgment be reversed with instructions that the court below require the defendant to plead to’the declaration.