Strong v. Crosby

Ellsworth, J. The questions of law which were made in this case, being ruled in favour of the defendants, they can have no cause of complaint on account of the law. Most evidently, the cause was one for the consideration of the jury; and so far as the evidence before them, is detailed in the motion, we think the jury have come to a correct conclusion in their verdict. The motion shows, that the defendants, as partners, under the name of Crosby, Hale & Conkey, occupied the plaintiff’s mill, under a lease from April, 1846, to April, 1847, at an annual rent of 1,500 dollars; that in February, 1847, a short time before the termination of the lease just mentioned, a new lease was obtained in the company name, to continue for three years from the time when the first ended, at the farther annual rent of 1,650 dollars. Crosby and Conkey, on the trial below, claimed, that Hale, who personally procured the new lease, although then a partner with them, had no authority to take such a lease, in the name and behalf of Crosby, Hale & Conkey; that he had no authority at first, and they had never ratified the lease, by any subsequent assent or acquiescence. Here the plaintiff and defendants were at issue; the plaintiff insisting, that the evidence before the jury fully proved, that Hale was not only authorized, as a partner, to enter into the contract, and so bound the company, but that they afterwards ratified and confirmed [404] it, especially by transferring the lease, and the possession under it, to Hale, as his share of the partnership effects, when the partnership was dissolved, in July, 1849. The jury found this issue in favour of the plaintiff. Crosby and Conkey further claimed, that the lease, being only by parol, it must be held to be a lease from year to year; and hence, that they could put an end to its continuance, and terminate their tenancy, at the end of the second year; for up to that time, they admitted their liability had continued, since the company were actually in possession during the whole of the first year, and up to the month of July, in the second year. The court concurred in this claim of the two defendants, and instructed the jury, that Crosby and Conkey could terminate their tenancy of the mill, provided they took proper steps to accomplish it, at the end of the second year, and so could put an end to their liability for rent after that time; but that it was, upon the proof in the case, altogether a question of fact, if they had. The jury must say, whether the two defendants had actually done anything of this character or not. The plaintiff denied that they had; the two defendants asserted they had; and here the matter was left with the jury. The court was not asked to put a construction on the evidence offered upon this point; nor would it have been proper for the court so to have done, had such request been made. But it was not made; and the whole evidence went together to the jury. In commenting upon this evidence, in its bearing upon the contested point, the court very properly, as it seems to us, illustrates its meaning, by stating certain specific acts, which, if fairly and openly done by the two defendants, might be held to put an end to their relation as tenants, notwithstanding the lease and the continued personal occupancy of Hale under it. The general rule which was laid down, by the court, for deciding whether all the defendants, or only Hale, actually held under the lease, notwithstanding the dissolution of the partnership, was as fair and liberal towards the two defendants, as they could, with any propriety, ask from the court: “any words or acts of the two defendants, which, fairly interpreted, are a surrender to the plaintiff, by Crosby and Conkey, of their possession,” is the language of the charge. Is this rule too stringent? We think not. If in truth all the defendants [405] continued to be tenants, as the plaintiff insisted was the fact, until the possession was finally ended, and the key returned to the plaintiff, in October, 1848, whether the mill was personally occupied, by one more of the number, under the lease, it is manifestly just, that all should remain liable for the rent. The jury must have found, that the defendants had never repudiated the lease. Crosby and Conkey had given notice, it is true, in September, 1847, that they were no longer connected with the mill themselves, and should not hold themselves liable for future rent; but this notice was accompanied with this reason for their unwillingness to continue liable, that they had been dissatisfied, and upon their late dissolution, had given the leased premises to Hale as his share of the company effects, and that Hale would pay the rent himself, to which the plaintiff immediately replied, and objected; and there the business was left. Their giving up the lease as his share, instead of putting an end to its continuance, is rather an act of affirmance and ratification, than otherwise. The plaintiff most justly insists, on his part, that the original lessees shall be held liable for rent until they, or their assignee, by some open and unequivocal act, put an end to the tenancy and give up possession; and that each lessee, if he will separately claim exemption, shall do whatever, he can do, both by words and acts, towards putting an end to the existing lease, and any possession under it, by the lessees, or some of them: assigning the lease to one partner, and declaring that that partner will alone pay the rent, because he takes the lease as his share, and runs the mill on his own account, is very far from a renunciation of the lease, or of possession upon the terms of it. We are not called upon to revise that portion of the charge, which was in the two defendants’ favour, that two of three joint lessees can be held to have given up to their landlord their possession, and so terminated their relation as tenants, while one of their number insists upon the continuance of the lease, and actually holds the plaintiff out of possession by virtue of it. This is a very grave question worthy of much consideration. It is forcibly said, by the plaintiff’s counsel, the defendants were let into possession jointly, and they must jointly surrender it, or not at all. Perhaps however, as the lease is good only for one year, a part of the [406] lessees may be permitted to withdraw and give up possession, as far as they are able, to their landlord, although their co-lessee will not unite with them in the act, but obstinately continues his possession, in defiance of their common landlord. This question, however, is now unimportant, because the court, proforma, ruled in favour of the defendants. In this opinion the other judges concurred. New trial denied.