13 La. 193 | La. | 1839
delivered the opinion of the court.
The plaintiff claims from the defendants, commercial partners, in solido, one year’s rent of a store, payable by monthly instalments, they having left the premises before the expiration of the lease.
The defendants pleaded the general issue.
The court gave judgment in solido, for fifteen hundred dollars, with leave to take out execution for the sum of eight hundred and seventy-five dollars, being the amount of rent due and payable at the date of the judgment, and so from .month to month, for the sum of one hundred and twenty-five dollars, until the whole be paid. The defendants appealed.
Their counsel has contended, that the premises were rented by one of the defendants, in his own name, and, therefore, the partnership is not bound for the rent.
2nd. The suit was premature, for part of the rent was not due at the time it was brought.
It appears that one of the defendants rented the premises} verbally, and afterwards a written lease was offered for his signature, in which his individual name was used. But it appears, also, that the store was occupied by the partnership until it was abandoned. This latter circumstance shows that the contract was made for the affairs of the partnership ; it is, therefore, bound by the act of one of the partners, though made in his individual name. Even in an ordinary partnership, the contracts of a partner, though without the authority of the others, bind them, provided it be proved that the partnership was benefited by the transaction. Louisiana Code, 2845.
In the case of Christy vs. Cazanave, 2 Martin, N. S., 451, this court held, that if the tenant abandoned the premises during the lease, he is bound for the rent for the whole term
The repeal spoken of in the code, and the act of 1828, cannot extend beyond the laws which the legislature itself had enacted; for it is this alone which it may repeal; eodem modo quiquit constitutur, eodem modo dissolvitur.
The civil or municipal law, that is, the rule by which particular districts, communities, or nations are governed, being thus defined by Justinian — “jus civile est quod quisquí sibi populus constituit." 1 Blackstone's Commentaries, 44. This is necessarily confined to positive or written law. It cannot be extended to those unwritten laws which do not derive their authority from the positive institution of any people, as the revealed law, the natural law, the law of nations, the laws , , , ’ ... „ ’ . . of peace and war, and those laws which are founded in those relations of justice that existed in the nature of things, antecedent to any positive precept. ' r
, , , , „ . , _ We, therefore, conclude, that the Spanish, Roman, and French civil laws, which the legislature repealed, are the posi-(¡ve written, or statute laws of those nations, .and of this state : , . , , and onlysuch as were introductory of a new rule, and not those which were merely declaratory — that the legislature did not jntend to abrogate those principles of law which had been ° 1 /. established or settled by the decisions of courts of justice,
Testing the judgment of this court, in the case of Christy YS‘ Gazanave, by these rules, we do not find it grounded on any statute of Spain, of the late territory or the present state. We know not any Roman of French statute which was in
The district judge has provided for the security of the • latter, by directing that the execution should not immediately issue for more than the amount of the debt actually payable; and afterwards, at the end of every month, for the monthly rent, affording him the opportunity of seeking relief, if he has any right thereto, on account of any rent received by the plaintiff from other tenants.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.