11 Rob. 101 | La. | 1845
The defendant, who, as an absentee, has been sued through his agent or attorney in fact, is appellant from a judgment which declares the dissolution of a lease by him made to one Fessard, of certain premises situated in New Orleans, by a notarial act, executed on the 8th of February, 1841, to take effect from the 1st of November ensuing; and which perpetuates the injunction obtained by the plaintiff, for all rents which would have been due under said lease, and under a judgment heretofore rendered between the parties to the same, from the 1st day of November, 1843.
On the 15th of December, an execution having issued on the last judgment, the present suit was instituted, and an injunction subsequently sued out, for the purpose of obtaining the dissolution of the lease from the 1st of May, 1843, and of perpetuating the injunction. The principal grounds upon which the plaintiff bases his demand, are, that since said judgment was obtained, the petitioner has learned that the lessor’s agent, had, on or about the 15th of October, 1843, leased the whole or part of the premises to'new tenants,-without the consent of the petitioner, and without giving him any notice of the fact; that said lessor has thereby accepted the annulling of said lease, in accordance with the letter written to him by the petitioner; that the eon-duct of the lessor’s agent must be considered as a breach of the said contract of lease ; and that when the said agent obtained the judgment complained of, he well knew that said lease had been dissolved by the effect of his letting the whole, or part of the premises, himself to other persons.
This action was answered by the defendant, who first excepted to the plaintiff’s demand on the grounds that the latter had no right to ask for the dissolution of the lease, as he is not the principal party to the contract, but only an accessary ; and that the matter in controversy has been settled by two judgments rendered against him, &c. The defendant further pleaded the general issue, and claimed in reconvention a sum of $1,200
The judgment appealed from was founded mainly on the grounds that by subsequently leasing portions of the premises to other persons, the defendant, through his agent, had violated his obligations; that obligations are extinguished by the effect of the resolutory condition : and that whether Roumage be considered as the co-obligor, or as the surety of the lessee, he is equally at liberty to avail himself of the violation of the contract by the lessor, and to discharge himself from his obligations.
The evidence shows that divers tenants who had originally contracted with the plaintiff, continued after the date of his letter, to occupy the portions of the premises which they had previously possessed, and that when Barriere, the defendant’s agent, undertook to collect the rent, he received it under the same terms as had been agreed on between the tenants and Roumage. In the month of November, however, Barriere thought proper to lease divers portions of the premises to other tenants; and when he settled with them for the rent at subsequent periods, he gave them receipts in his own name; those receipts, fifteen in number, were produced in evidence. They bear the dates of July, August, September, October, November, December, 1843, and January and February, 1844, and specify, without any exception, that the sums paid were received by Bar-riere : “ En deduction de ce que doit Y. Roumage, en sa qualité de caution de Charles Fessard, locataire principal.” This reservation exists not only upon the receipts given to the old tenants, but also upon those given to the new ones, who, although it is stated by the witnesses Lecourt, Gosseth, and others that Bar-riere did not tell them that he was leasing the premises for account of Roumage, were sufficiently apprized thereby that Fes-sard was the principal lessee, and that the amounts paid were received on account of the rent due by Roumage as Fessard’s surety. Divers sums were also paid by the tenants to the sheriff, who gave them receipts accordingly, and it seems from the testimony adduced that, after the date of Roumage’s letter already recited, he abstained from calling upon the tenants for the
Under this state of facts, how can the plaintiff pretend that his lessor has violated his obligations, and that he, plaintiff, is discharged from his contract ? It appears from the very letter upon which he relies, and which contains the proposals which, he says, were subsequently accepted by the defendant,- that he was previously in the habit of paying the difference which existed between the sums which he received for rent from the sub-tenants, and the amount due every month under the lease; he complains of the hardship of the circumstance which subjected him to complying with the defendant’s pretensions, but his proposals do not go further than intimating to the lessor that he will cease paying the difference to which he had previously and regularly subjected himself since the departure of the lessee, and that the defendant ought to be satisfied with the rent paid monthly by the sub-tenants. Was this proposition accepted so as to release the plaintiff from his obligations ? and do the acts of the defendant’s agent amount to an acceptance ?
We have already seen that immediately after the plaintiff’s letter reached the defendant, the latter instituted a suit against him for one month’s rent; that, shortly after, he brought another suit against him for the amount to be due for the remainder of the whole, term; and that, notwithstanding the production of his letter, said plaintiff was declared, in the judgment rendered on the 29th of November, 1843, to be liable for the' whole amount of the rent until the expiration of the lease. At
Pothier, in his Contrat de Louage, No. 151, says: “Lorsque l’empéchement qui a empiché le locataire d’entrer enjouissance de la maison qui lui a étc louée, ou qui l’a empéché de la continuer estun empéchement qui ne vient que de la part du locataire, il nepeutpas pour cela demander la remise des loyers. 11 suffit que la maison soit exploitable, que le locateur soitprét a, en accorder la jouissance au locataire, et que le locataire puisse l’occuper, ou par lui ou par d’autres, pour que les loyers soient dus.” This, says the author,
With this view of the question, we must conclude that the lease was not dissolved, and that the judgment enjoined had not ceased, when this suit was instituted, to have its effect; but as said judgment is for the whole amount of the rent due, or to be due for the whole term, (until the 1st of November, 1846), we think it ought not to preclude the plaintiff from demanding the
It is, therefere, ordered and decreed, that the judgment of the District Court be annulled and reversed, that the injunction be provisionally maintained, and that this case be remanded to the court a qua for further proceedings, and final adjustment, under the legal principles recognized in this opinion, after making the purchaser and actual owner of the premises a party to this controversy. The costs of this appeal to be borne by the plaintiff and appellee.