| Pa. | Jan 31, 1887
delivered the opinion of the court, January 31st, 1887.
There is no question at all that the tenants’ right of renewal although it may not be enforceable against the will of the landlord, is a property or asset incident to an existing lease, and is so recognized by all the authorities. When the lease is held by a .partnership this chance or opportunity of renewal is in itself a distinct asset of the partnership in which all the partners have an interest. As a consequence of this doctrine one partner in a firm cannot take a new lease in renewal of an existing one of the firm, in his own name, or for his own benefit without being liable to account for it to the partnership. In Lindley on Partnership, vol. 2, star page 574, the rule is thus stated: “ It has been decided more than once that if one partner obtains in his own name either during the partnership or before its assets have been sold a renewal of the lease of the partnership property, he may not be allowed to treat the renewal lease as his own, and as one in which his copartners have no interest.” In Lacy v. Hall, 1 Wright, 360" court="Ohio" date_filed="1883-08-15" href="https://app.midpage.ai/document/woolsey-v-seely-6802333?utm_source=webapp" opinion_id="6802333">1 Wright, 360, this court said, Strong, J.: “A partner in a firm who takes a renewal of a lease to the firm in his own name holds it for the firm, and that even though the lessor has refused to renew the lease with the old lessees: Featherstonaugh v. Fenwick, 17 Ves., 298. See also note to Moody v. Matthews, 7 Ves., 186, Sumner’s ed. Yet the consideration for the new lease is the covenant of the partner who obtained it. But his relation to his copartner forbids his treating for it for his own individual benefit. And if he does so treat and obtains a lease in his own name, he holds in trust for the partnership.”
In Clegg v. Edmondson, 8 De. G M. & Gor., 787, it is said, “Although it cannot be laid down that in no case can a partner during the partnership contract for a new lease to himself exclusively, of property let to a partnership, it is very difficult (and especially as regards a managing partner) to make out such a case, and the mere announcement to his partners of his intention to apply for such a lease after the dissolution is not sufficient to exclude their interest, although the partnership is at will.”
Nor does the fact that the renewal was obtained after the dissolution change this rule. Thus in Speiss v. Rosswog, 96 N.Y., 651" court="NY" date_filed="1884-06-24" href="https://app.midpage.ai/document/speiss-v--rosswog-3603735?utm_source=webapp" opinion_id="3603735">96 N. Y., 651, the Court of Appeals of New York affirmed an opinion of the Supreme. Court in which Sedgwick, C. J., said: “The fact in this case which the learned counsel for
This reasoning is in consonance with our views and appears to be a necessary consequence of the partnership relation applied to what is clearly a partnership asset. The circumstance that there was no provision for a renewal contained in the old lease is immaterial. It is not the absolute right to a renewal, but the expectancy or opportunity of renewal which pertains to a greater or less extent to all leases, that constitutes the property or asset in question. And this expectancy grows out of and belongs to the old lease which, being firm property, draws to it the expectancy and clothes it with the same quality. In the present ease the lease of the firm expired October 1st, 1883, the firm was dissolved July 12th, 1883, and the new lease was obtained by Loughrey on September 29th, 1883, before the expiration of the old one. As the new lease was not made with the consent of Johnson he has not lost his right to have Loughrey account for the value of the expectancy thus appropriated by him. That value however must be determined by the Master, it cannot be fixed or even indicated by us, and it must be determined as an expectancy only and not as a certainty.
The decree of the court below is reversed at the cost of the appellee, and the record is remitted with direction that the cause be referred to the Master to take testimony and report the value of the expectancy of renewal, and thereupon- to charge the appellee with the same as a partnership asset in the settlement of the accounts.