Sexton v. Chicago Storage Co.

Gary, J. In the spring of 1885 the plaintiff demised to one Frank F. Cole certain premises, the term to expire on the 1st day of May, 1888. Cole demised to the storage company for a term expiring at the same time. The latter lease contained a covenant to surrender to Cole at the end of the term, or sooner determination thereof by forfeiture. A power of re-entry is reserved to Cole, and the rent payable to him differs from that in the lease to him. This lease did not operate asan assignment of Cole’s term, but took effect as an under lease. The reasons for thus permitting the contracts of the parties to have the effect they themselves intended are so fully stated in the cases cited below, and would till so much space if repeated, that it is enough to refer to the cases. Collins v. Hasbrouk, 56 N. Y. 157; Dunlap v. Bullard, 131 Mass. 161. This bill, filed by the plaintiff on behalf of himself and all other creditors of the storage company against the company and the stockholders, therefore fails, upon the ground that he is not a creditor of the company, there being no privity of contract or estate" between the superior landlord and under tenant. Taylor’s Landlord and Tenant, Sec. 448. Mor can the plaintiff have any benefit from the vague and uncertain ground of equity jurisdiction stated in Story’s Eq. Jur., Sec-687, and referred to in Taylor’s Landlord and Tenant, 659. The record shows that the plaintiff had resumed possession of the premises before this bill was filed, and had suits in attachment pending against Cole for the accrued rent, in which suits the company is garnished, and the question whether the company owed Cole is pending in those suits. If it did, the plaintiff may,- in those suits, recover judgment against the company, and if, on execution, he can not collect them, he will have a standing in court against the stockholders. If the company did not owe Cole, it is not liable either in law or equity. The bill was rightfully dismissed for want of equity, but, as the case shows that litigation in various forms is pending at law, this court will, to prevent any embarrassment to the plaintiff in other cases, modify the decree by ordering that the dismissal is without prejudice to any remedy or defense that the plaintiff may have at law. The appellees will, however, recover their costs in this court, as this modification is ex gratia. Decree modified.