Bissell v. Lloyd

Mr. Justice Dickey delivered the opinion of the Court: We find no sufficient ground in the record to reverse this judgment. By the terms of the lease, the lessees were hound to make needed repairs and alterations in and about the store-room, which was only a part of the building. The fair implication from this express undertaking is, that the lessor undertook to keep the residue of the building in repair. The premises were not occupied by the lessees, or by any one under them, after March 1, 1871. The evidence tends to show that at that time the building leaked so badly as to render the store room in question unfit for the use for which it was rented. Upon this ground, alone, it would seem the chancellor was fully justified in dismissing the bill as against Thomas Lloyd. True, judgments were rendered against the estate of George P. Lloyd, July 3, 1872, for a portion of the rent claimed, but Thomas Lloyd was not a party to the proceedings, and he is in no manner concluded thereby. The complainant seeks to charge Thomas Lloyd with a portion of this unpaid rent, upon the ground that, in November, 1869, some three months after the making of the lease, Schembs, one of the lessees, sold to his partners his interest in the firm, and they assumed the liabilities of the firm; and that Billings and George P. Lloyd, under the firm name of Billings & Lloyd, continued the business at the same place, paying the rent until May 1, 1870, when George P. Lloyd died; and that thereupon Bissell, as surviving partner, con-tinned to occupy the store, and remained in custody of the assets of the late firm, until August 20, 1870, and on that day the entire assets were turned over by Billings to Thomas Lloyd, who at that time bought the interest of Billings in the same for $2200, and undertook, by his bond to Billings of that date, to pay all the debts of the late firm; and it is claimed by complainant, that the value of the assets in that way received by Thomas Lloyd exceeds the amount of debts of the firm paid by Thomas Lloyd by several thousand dollars, and to that extent it is claimed that a decree should go against him in favor of complainant. The proofs show that on July 29, 1879, Bissell’s claim for the rent here claimed was allowed against the estate of George P. Lloyd, and the amount fixed at the sums of $1500 and $1916.72, mailing $3416.72, “to be paid out of property not heretofore inventoried or accounted for. ” The record shows that an administrator of the estate of George P. Lloyd, deceased, was duly appointed, and qualified on July 14, 1870, and that Billings, the surviving partner, prepared a full inventory of the assets of the late firm and a, list of its liabilities, and having the assets duly appraised, filed with the county court said inventory and other papers, in the month of May, 1870; and that on the 23d of November, •1872, the administrator of the estate of George P. Lloyd made a report to the county court, in answer to a citation on the complaint of Bissell, showing that there were no assets of that estate known to him, except his interest in the partnership effects of Billings & Lloyd, which went into the hands of Billings, as surviving partner. Soon after Thomas Lloyd bought the assets of the late firm of Billings & Lloyd, he took in a partner in the business, named Mcllvaine, and they carried on business in the store room in question until March, 1871, paying rent to Bissell at the rate of $1000 a-year, and taking receipts in the name of “Lloyd & Mcllvaine. ” About that time Mcllvaine left the firm, and Thomas Lloyd removed from the premises, and refused to pay any part of the rent now demanded. Complainant’s claim, if any, against Thomas Lloyd, is an equity supposed to arise from his receipt of the goods and effects turned over to him by Billings in August, 1870. His right to an allowance against the estate of Geo. P. Lloyd, for a breach of the contract in the lease, was complete in April, 1871, when Billings and Schembs had both abandoned the premises, and Thomas Lloyd, who entered under Billings, had also abandoned the same, and repudiated Bissell’s claim upon him for rent. In so far as the enforcement of this supposed equity of the complainant is concerned, the complainant lay by and slept upon his supposed rights from April, 1871, until September, 1879, more than eight years. This delay is set up as a defence in the pleadings. We regard the claim as stale, and such an one as a court of chancery should not interfere to enforce. The judgment of the Appellate Court is therefore affirmed. Judgment affirmed.