Montague v. Weil & Bro.

[51] The opinion of the court on the original hearing was delivered by Manning C. J. and on rehearing by Spencer J. The defendants in August 1873 leased a store from plaintiffs for one year, commencing from first of November following at seventy-five dollars per month, payable at the end of each month. They were occupying the store under a former lease at the time the new lease, or agreement to lease, was made, and the rental of the old lease, which expired on thirty-first October was one hundred dollars per month. The agreement was that the store should be whitewashed, and a written lease and rent-notes were to be signed. The first of these stipulations was performed by plaintiffs, and they also had prepared the necessary writings for the signature of the defendants, which were presented to them. Objection was made by them because of an opening in the upper part of a wall,, and this was closed to comply with their wishes, and the lease and notes-again presented to them for signature. They expressed their willingness to sign them, but deferred doing it from time to time, giving unsatisfactory excuses for this omission or delay in signing, but never refusing, on the contrary always promising to execute the lease and sign the notes. On the 10th. of October, the plaintiffs’ agent addressed a letter to the defendants, reciting at length the agreement, and his subsequent efforts to obtain the defendants’ signature to the lease and notes, recalling to their recollection their promises to sign, their delays, and informing them of his purpose to enforce the contract. They promised many times, and to several persons to comply with their agreement. The occupant of the adjoining store was requested by the plaintiffs’ agent to take the matter in hand, and he says that Samuel Weil, one of the firm, constantly declared his intention to sign the papers, and talked with him about the lease fifty times. It is indubitably established that the defendants made the agreement to lease, and afterwards repeatedly expressed their willingness and intention to perfect it by executing the lease and notes. But they never did execute them. They continued however in the occupancy of the house, and during the first week of December paid the rent for November under the new lease. After this payment of the November rent, the plaintiffs’ agent inquired of Samuel Weil again if he had executed the lease, and the latter promised to do it the next day. On the 15th. of December the plaintiffs’ agent received a written notice that Samuel Weil, successor to Weil & Bro. would not keep the storehouse longer than first proximo, and this was signed S. Weil per M. G. Weil. On the 26th. of that month plaintiffs brought this suit to recover the rent agreed on in this new lease, and provisionally seized the contents of the store. The sum sued for is $825 with interest on the monthly instalments from their maturities. [52] There is no dispute that the occurrences have been correctly detailed. Upon one matter alone is there any difference, and that is whether notice of the dissolution of the firm was ever given to plaintiffs. But the defendants deny any liability, because the lease was not complete until they had signed it. There was an agreement to lease upon specified terms, and the lease was to be signed, but this agreement was never consummated. The lease never was signed. It is also urged in defence that the firm of "Weil & Bro. was dissolved on 25th. October 1873, six days before the lease was to begin, and notice of its dissolution was published in a newspaper on the 31st., and therefore the firm could not be held responsible on the lease, and that it has paid all the rent due up to the time of its dissolution. It was also urged by way of exception that the firm could not be sued after its dissolution by service on one of its members, and that no judgment could be rendered against the member who was cited, because the citation was addressed to the firm. The defence is not good, and first as to the exception. Since the case of Kearney vs. Fenner 14 Annual 870. it has not been disputed that service of citation upon one partner of a commercial firm was sufficient, and that a judgment against the firm was properly rendered upon such citation. It is also true that a commercial partnership exists for the purpose of its liquidation, after it has been dissolved, and the former partners may be sued in the Court of the firm domicil on the liabilities of the firm, and in a late case this doctrine was extended so as to permit them to be brought in by attachment, if they were non-residents. Lobdell vs. Bushnell, 24 Annual, 295. A commercial firm is not permitted to escape its obligations by a dissolution, nor will such dissolution oppose any obstacle to its creditors enforcing their obligations in the court where they were enforceable during the existence of the firm. Troplong remarks this as an anomaly ;— L’état d’une Société de commerce pendant sa liquidation présente de singuliéres anomalies. Cette Société est dissoute, mais dans l’usage du commerce ello est censée subsister encore pour se liquider. Elle a pris fin pour commerce pour agir et entreprendre ; il semble qu’elle so prolongue en quelque sorte, pour regler le passé et mettre ordre a ces affaires. C’est cette idée qu’ exprime la formule usitée dans les circulaires des nógocians. La Société ne subsiste plus que pour sa liquidation. Traité de la Société, 2. to No. 1004. In a very early case, Des Boulets vs. Gravier, 1. N. S. 420. this Court approvingly quotes from Pothier the general rule touching the necessity of reducing the agreement to writing and thus states it;— it must appear to be the intention' of the parties to make the perfection of the agreement depend on the writing, for if it was merely contem [53] plated to secure a more authentic'mode of proof, then neither party can pretend the contract was not complete. Zacharie formulates the doctrine thus ; — La clause par laquelle les parties conviennent de consigner leur convention dans un acte sous seing privé, ou de la faire constaten par acte notarió n’en fait pas dependre l’existence de laecomplissement de ces formalities, a moins qu’il ne resulte clairement des termes mémes de cette clause ou des inconstances, que telle a étó l’intention des parties. Une clause de cette nature doit, en gónéral, étre considerée, comme ayant uniquement pour objet d’assurer la preuve de la convention a laquelle elle se rapporte. 2 to 466 note. The intention of the parties here nowhere appears to be to make the existence of the lease depend upon its formal confection, and the signing. On the contrary the payment of the November rent under that lease is evidence that they regarded it as complete, for if the store was held under the old lease, a hundred dollars should have been paid instead of seventy-five. The defendants, both by words and conduct, induced the plaintiffs to believe that they regarded the new lease as binding and complete, and it is a sound principle of law, as well as of morals, that where one by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is .concluded from averring- against the latter a different state of things as existing at the same time. Marsh vs. Smith, 5 Rob. 523. The answer of the defendants to this is, that the firm of Weil & Brother did not pay the November rent, nor continue occupying the house, but only Samuel Weil, one of the former members of that firm, and that notice of the dissolution of the firm was brought home to plaintiffs by publication in a newspaper, as well as by personal notice. The agent of the plaintiffs says he did not receive personal notice of the dissolution, and never heard of it until late in the year, and we believe him. It was said in oral argument by the defendants’ counsel that the plaintiffs were affected with notice by the newspaper publication, and that the rule is that to those who had had dealings with a firm, a newspaper publication of dissolution was all that was required, and a special notice was required only by others. The rule is just the reverse. Special notice of the dissolution should be given to those who have had dealings with the firm. Certainly the plaintiffs were not told that the firm had ceased to occupy the house during November and up to the middle of December, when the defendant were often applied to to sign the lease, and these different applications afforded convenient and appropriate opportunities for such information to be given. Nor does the payment of the rent for November by Samuel Weil alter the relative positions of [54] the parties. He was one of the firm, and its active member, and represented it. After the institution of tbe suit, the rent for December was paid, and is so considered in the judgment, and in March the plaintiffs rented the house to other parties for the benefit of the defendants and for the I’emainder of the term of their lease. This rental has also been paid, and plaintiffs concede that credit should be allowed for these sums. It is therefore ordered, adjudged, and decreed that the judgment of the lower court is affirmed, subject to the credit of fifty dollars on the first of April 1874, and same sum on the first of each succeeding month up to and including the first of November of that year, and that the plaintiffs have and recover their costs of the defendants.