Henderson v. A. Meyers & Bro.

The opinion of the court was delivered by Breaux, J. Plaintiffs, domiciled in Kentucky, leased for the period of five years, beginning October 1, 1890, to the defendants, A. & J. Meyers, clothiers, the premises in which they conducted their business, at;an annual rental of $5250, payable in monthly instalments, for which they furnished sixty promissory notes of $437.50 each, and obligated themselves to pay 5 per cent, attorney’s fee in case of suit. The lease contains the stipulation that the lessees should not sublet the property without the consent of the lessor. It was also stipulated that in ease of the non-payment of one of the notes at its maturity the whole rent would become due. • A corporation was organized in 1891, the capital stock of which amounted to $32,000. The defendants owned shares in the company to the amount of $28,000. In August of that year the defendants, A. Meyers & Bro., sold and delivered to the corporation styled A. Meyers & Bro. Company, Limited, property consisting of clothing, of cloths, gentlemen’s furnishing goods, etc., on the leased premises, and assumed the obligations of the firm of A. Meyers & Bro., and continued the business as successors of the firm. The agents of the plaintiffs, in this city, deposited the rent notes in bank for collection. The Meyers & Bro. Company, Limited, paid those due monthly, from the date of their possession, August, 1891, to July, 1892. The agents received the collections from the bank, and the member of the agent firm, who testifies, says that they gave themselves no concern as to who paid the rents. [793] He answers as follows the questions propounded to him as a witness : Q. You are generally familiar with the business of those who occupy stores on that street, are you not? A. Yes, sir. Q. Then, for some time prior to the suit, you were aware of the fact, were you not, that A. Meyers & Bro. Company, Limited, were occupying and doing business in these premises? A. Yes, sir. Q. You were aware that they were paying the rent? A. Well, that I don’t know. Q. You don’t know? A. As long as the rent was paid I did not inquire who paid it. Q,. You did not care who paid it? A. I did not care1 who paid it; I went to bank on the fourth of every month and inquired of the amount that had been paid. Q. And you were told at each time, up to date of 'filing of this suit, that they had been regularly paid? A. That they had been regularly paid. Since the month of August, 1892, the monthly rentals, as they became due, were tendered to plaintiffs’ agent, who refused to receive them. In July, 1892, the above named corporation, setting forth that they were unable to meet their obligations, applied for the appointment of commissioners, with authority to sell' the property and liquidate, the affairs of the company. . ¡ The order was granted, and the commissioners-and liquidators assumed the discharge of duties devolving upon them. In August, 1892, the liquidating proceeding were discontinued, the property was turned over by the liquidators to the company, and the company was authorized to resume business under its charter. Pleadings. A few days after the application had ¡been made, as above mentioned, to liquidate the affairs of the corporation, plaintiffs brought suit upon the rent notes, and obtained a provisional seizure against the defendants, A. Meyers & Bro. • The plaintiffs, in an affidavit not objectionable as to form, averred apprehension of the removal1 of' the property aWay from the premises. • ■ • ; [794] The defendants interposed the plea of no cause of action and prematurity ; and that no rent being due, the liquidating proceedings had been discontinued, and the corporation had resumed business. .At the time the liquidators were no longer in possession. The exception was referred to the merits on plaintiffs’ motion. 'The corporation of A. Meyers & Bro. Co., Limited, intervened, and •alleged that they are the sub-tenants of the defendants, had paid the rent, and being the owners of the property are entitled to its release, upon the execution of a forthcoming bond. In compliance with the court’s order they furnished bond to the sheriff’s order, and took possession of the property. The defendants in their answer plead the general denial. Admitting the sale made by them to the intervenors and that the latter assumed their obligations and continued to occupy the premises leased, they allege that immediately after the sale they assumed the position of sub-tenants of the premises. They also allege that plaintiffs have accepted payment of rent of A. Meyers & Bro. Co., Limited, and recognized them as sub-tenants; that they are estopped, and can not repudiate said corporation as sub-tenants. That there has been tendered to plaintiffs the amount of rent •due and unpaid. They allege further that plaintiffs had no good reason to believe that the defendants would remove the property out of the premises. That instead of resorting to a provisional seizure plaintiffs’ remedy should have been sought by intervening u'm re liquidation of A. Meyers & Bro. Co., Limited, of the docket, by rule or third opposition in the liquidation proceedings.” That the rent does not become due until a failure to pay the rent •of any one month. Plaintiffs filed a supplemental petition, setting forth that since the suit was instituted the defendants and the A. Meyers & Bro. Oc., Limited, have removed the property from the store. They claim interest and fee of attorney. The defendants objected to the supplemental petition on the ground that it came too late, after issue joined, and that it contradicts the allegations of the original petition. ' The judgment of the court a qua condemns the defendants, A. Meyers & Bro., individually and in solido, to pay the entire rent, in [795] terest and fee of attorney, and decrees that plaintiffs’ lessor’s lien and privileges for the amount be recognized and enforced. The intervention of A. Meyers & Bro. Oo., Limited, is dismissed. Prom the judgment the defendants and the intervenors appeal. Bill op -Exceptions. The objections to the amendment Of plaintiffs’ petition, as reserved in defendants’ bill of exceptions,' present themselves preliminarily for decision. Iu reference to the stage of the proceedings, at which it was filed, the judge a quo may exercise a broad discretion. He may allow the amendment after issue joined, and the ease is fixed for trial if no injury be done. “The general rule that governs even the strictest practice of the courts of Great Britain, on the subject of amendments, is that they shall be granted, or refused, as they may best tend to the furtherance of justice, with these exceptions only, that the amendment must be not wholly foreign to the case, that the plaintiff has not been guilty of any unusual delay, or vexatious practice, that the defendant be not surprised or oppressed.” Aston vs. Morgan, 1 M. 178; Vavasseur vs. Bayon, 11 M. 640. Abot vs. Bayon, 4 N. S. 818. Gasquet vs. Johnson, 4 L. 433. Succession of Rougan, 7 R. 436. The nature of the action was not changed by the amendment. It was only setting out facts of removal of the property not inconsistent with the petition. We therefore think that the court did not err in allowing the amendment.