McKinney v. Peck

Bbeese, J. This was an action of assumpsit against the plaintiffs in error as partners with one Samuel T. Wentworth, for the use and occupation of a certain store, Eb. 161, on Lake street, in the city of Chicago. The defendants filed separately, a plea of non-assumpsit, verified on the part of McKinney in error, by an affidavit. The first question arising is, what was put in issue by the plea so verified ? By sec. 8, of ch. 40, it is provided, that “ in actions upon contracts, express or implied, against two or more defendants, alleged to have been made or executed by such defendants as partners, or joint obligors or payors, proof of the joint liability or partnership of the defendants, or their Christian or sirnames, shall not in the first instance be required to entitle the plaintiff to judgment, unless such proof shall be rendered necessary by pleading in abatement, or the filing of pleas, denying the execution of such writings, verified by affidavit, as required by law.” (Scates’ Comp. 256.) This court has given a construction to this section, to which we must adhere, as it has become a settled rule of practice. We have said, “In all cases, except where the foundation of the action is an instrument of writing, the execution of which is denied by plea, verified by affidavit, whether the action be upon contracts express or implied, in writing or by parol, defendants who are sued as partners, can only put in issue that fact by filing a plea in abatement specially denying the partnership, or joint liability.” Warren v. Chandler et al., 12 Ill. 127. The plea, therefore, of appellant, not being a plea in abatement, specially denying the partnership or joint liability, did not put that fact in issue, and consequently it was not necessary for the plaintiff to prove it—it was admitted on the record. This point being disposed of, leaves little else in the case. The suit was not brought upon the lease. That was only inducement to the action, and a holding over, after the expiration of one year, will be construed as a holding under the terms of the lease. It was proved that the lessees entered, occupied and held the premises, paying rent during the term, and took receipts in their joint names for the monthly payment of the rent. The appellant, it was shown, was in the habit of visiting annually this store, diming its occupancy under this lease, and he must be presumed to have examined the books, and have seen the payments for rent regularly en tered therein, and must have known how, and by whom, this business was managed. While the lease was in existence we hear of no complaints from him, or of any repudiation or denial of any lease, and his attention must have been directed to it, by the large monthly payments for rent. We cannot presume he was ignorant of the terms under which he was occupying, and of how much he was liable to pay for such occupancy. We think the circumstances which surrounded him were of such a nature as to compel him to know the terms upon which he was occupying the premises. When a party, holding premises for a certain term, under a written lease, holds over the term, the law will compel him to pay rent according to the written lease, nothing being shown indicating a change in the terms. The plaintiff has shown a joint occupancy of the premises by the defendants, and payment of the rent for the year stipulated in the lease, and a continuance of the occupancy and payment of rent for some months of the second year. They cannot, therefore, abandon the premises without paying rent for the second year, upon which they had entered. Though the payment of the rent was monthly, that does not imply a letting from month to month, against the testimony that the letting was for one year, on certain monthly payments. The practice and law of the case is with the defendant in error, and the judgment must be affirmed. Judgment affirmed.