Edwards v. Spalding

| Mont. | Jun 14, 1897

Pemberton, C. J.

The only material question involved in this appeal is as to whether the court helow erred in sustaining plaintiff’s demurrer to the separate special defenses pleaded in defendant’s answer.

The second separate defense alleged that the assignment of the lease to defendants by the N. Dysinger Company was void because not signed by the individual members of said firm. The fourth separate defense alleged that there was no consideration lor the assignment, or the assumption of the obligations of the original lessees by defendants, and that the same is therefore void. As these two defenses involve the statute of frauds, we will treat them together.

We think there can be no question as to the fact that the lease was made to the Dysingers and Canfield as members of the co-partnership known as the N. Dysinger Company. The lease so states. The evidence shows that the firm took possession of the premises, and used and occupied them ior the benefit of the co-partnership until they assigned the lease to-defendants. The lease was partnership property. The firm assigned it to the defendants. The appellant says he and his-co-defendant went into possession of the premises under the assignment by the firm, and that he paid all the ren's due-while he and his co-defendant held possession under that assignment. The lease being partnership-property, the assignment thereof by one of the firm was valid, if done by-authority of the other members of the firm, or ratified by them. (McGahan v. Bank, 156 U. S. 219, 15 Sup. Ct. 347;. 1 Devi. Deeds §§ 110, 111; Wilson v. Hunter, 14 Wis. 744.) The evidence in this case shows that the lease was signed by N. Dysinger with G. Dysinger’s consent. Canfield, the other partner, ratified it by accepting the assignment, and agreeing in writing to pay the rents.

The appellant having accepted the assignment of the lease in writing, and agreeing thereby to pay -the rents, and having-taken possession of the premises under the assignment by the N. Dysinger Company, and having paid the rents while in possession, placed himself in a position where he could have enforced a specific performance of the contract against the N. Dysinger Company, if that firm had refused to perform its-contract; and, of course,, the firm could have enforced the contract against him. Under such circumstances the contract is-taken out of the statute of frauds, and the appellant is not in a position to resist a, recovery upon the contention that the contract is void under that statute. (Scott v. Bush, 26 Mich. 418" court="Mich." date_filed="1873-01-17" href="https://app.midpage.ai/document/scott-v-bush-6635945?utm_source=webapp" opinion_id="6635945">26 Mich. 418; Nelson v. Implement Co., 96 Ala. 515" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/nelson-v-shelby-manufacturing--improvement-co-6514852?utm_source=webapp" opinion_id="6514852">96 Ala. 515, 11 South. 695; Abbott v. Draper, 4 Denio, 51" court="N.Y. Sup. Ct." date_filed="1847-01-15" href="https://app.midpage.ai/document/abbott-v-draper-5465347?utm_source=webapp" opinion_id="5465347">4 Denio, 51; Wallace v. Scoggins (Or.) 17 Am. St. Rep. 749, and notes (s. c. 21 P. 558" court="Or." date_filed="1889-04-22" href="https://app.midpage.ai/document/wallace-v-scoggins-6895408?utm_source=webapp" opinion_id="6895408">21 Pac. 558); Reed, St. Frauds, §§ 281, 381.)

We are unable to find any support for the contention that there was no consideration to support the assignment of the Dysinger .Company to appellant and his co-defendant and their acceptance thereof in writing, and agreement to pay the rents of the premises. The assignment of the lease to them, which we hold to be valid and binding, was a sufficient consideration, in law and equity, for the payment of rents by them. In a written contract, a consideration is presumed. Section 2169, Civil Code.

The fourth separate defense of appellant alleged, or attempted to allege, a release of defendant, • by showing that plaintiff accepted rent of the parties to whom appellant assigned his interest in the lease.

The evidence is not satisfactory that this allegation is true. It is the only allegation on which appellant bases his contention of release. The plaintiff in her testimony says that Can-field paid what rent was paid. Canfield is one of the parties that the Dysinger Company assigned the lease to,' and to which assignment the plaintiff assented. But, if it were undisputed that plaintiff accepted rent from the appellant’s assigns, this alone would not show a release of appellant. There is no allegation in the special defense that plaintiff accepted appellant’s assigns as her tenants. Hunt v. Gardner, 39 N. J. Law, 531.

We see no error in the action of the court in sustaining the demurrer to appellant’s answer. The matters specially pleaded constituted no defense.

There is no substantial evidence to support the defense that Frank Edwards, the son of plaintiff, was her agent in the matter, and that he evicted the assigns of the appellant from the leased premises. There is no merit in this defense.

It seems that in this case the appellant, when he assigned his interest in the lease, neglected to protect himself against the default of his assigns. If the result is a hardship to him, it is attributable to his own negligence. That is all there is in the case.

The judgment and order appealed from are affirmed.

Affirmed.

Hunt and Buck, JJ., concur.