Warner v. HaleWarner v. Hale
- Reporters:
- Before:
- Breese
delivered the opinion of the Court:
This was an action originally commenced before a justice of the pеace of Cook county, by Franklin M. Hale and George Snooks, as partners, against Lawson S. Warner and C. D. Swartwout, as partners, and taken by the appеal of Warner to the circuit court; in which court a judgment was rendered agаinst him for the amount of the plaintiffs’ claim.
To reverse this judgment, Warner appеals to this court, and makes the point that the agreement under which plaintiffs сlaimed relating to an interest in land, and not to be performed within one year from the making thereof, was void by the statute of frauds and perjuries; and secоnd, that he was not a party to the lease.
To the first point appellees reply, that taking possession of the leased premises, occupying the same for their business purposes, and paying rent therefor, took the сase out of the operation of this statute.
The premises leased wеre a dock on the Chicago river, and that the agreement was within the statute of frauds and perjuries is not denied.
The cases cited by appellees to sustain their position,1 that taking possession of the premises and paying rent, do not apply to a case of this kind. They are cases of the sale of land by parol, where the purchaser pays the purchase money, enters into possession, and, holding under his purchase, makes valuable and lasting improvements. Mason et al. v. Bair, 33 Ill. 194. We recollect no case wherе this doctrine of part performance has been applied to a lease and in a court of law.
The agreement being void, what remedy has thе owner? He has none on the contract, that is certain, but for the use and оccupation of the premises for the time they were occupiеd, his remedy is ample.
The premises were demised by parol for one year, at a stipulated rent, payable monthly. Under it the lessees entered into pdtesession, and paid the rent as it accrued, up to November, 1870, as is clаimed. The lease being void by force of the statute, the)’ became tenаnts from month to month, and would have been entitled to notice to quit. Prickett v. Ritter, 16 Ill. 96.
Wе think the proof is sufficient to show that appellant, with Swartwout, entered into the possession as partners, and paid rent as such.
Appellant claims, that the partnership ended and he abandoned the premises on the first of Oсtober, 1870. There is proof tending to show that after that date, Swartwout exerсised some control over the dock by offering the use of it to Bay ley to stоre his boats, which he did to some extent. It is not shown that appellant gave any notice to appellees, that he had abandoned the use of the premises, consequently they had a right to consider him as continuing in their ocсupancy with Swartwout, and treat him as an occupant.
Where two persons, as partners in business, enter into possession of premises by leave of the owner, with astipulation for the payment of the rent monthly, we are not of opinion it would be justifiable for one of the partners to withdraw without notice tо the lessor, and thus escape his liability for the rent. The partner withdrawing or abandoning the premises maybe the one on whose responsibility the occupancy was permitted.
It is a question for the jury to determine, from the evidencе, how long the premises were occupied by these parties as pаrtners, or by either of them, and if they find that one of them occupied for a longer time than that for which they have paid rent, and for the months specified in thе account, and no notice was given the owners of an abandonment by either of the partners, then they should find for the plaintiffs the rent in arrear for such time, estimating the value of the same on the basis of a quantum meruit.
With these views, the judgment must be reversed and the cause remanded.
Judgment reversed.