Burkhardt v. Yates

• Decision Date: 22 June 1894
• Citation: 37 N.E. 759,161 Mass. 591
• Parties: BURKHARDT v. YATES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 591

37 N.E. 759

BURKHARDT v. YATES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 22, 1894

COUNSEL

W.C. Cogswell, for plaintiff.

Bond & Morison, for defendants.

OPINION

FIELD C.J.

The indenture of lease purports to be between the plaintiff as lessor and the four defendants, "doing business under the firm name and style of Yates Bros., Shattuck & Co.," as lessees. It was signed and sealed by the plaintiff and by two of the defendants. The two other defendants, being out of the country at the time of the execution of the indenture did not sign it, although two spaces were left for their signatures with seals affixed. It apparently was the intention that all the defendants should sign and seal the indenture. One copy of this indenture thus executed was delivered by the plaintiff to the two of the defendants who had signed it, and they delivered the other copy to the plaintiff. The agreed facts show that the indenture was delivered to the two defendants for all the lessees, and that the firm entered upon and occupied the premises. The firm paid rent for one month, and occupied for five months, and then gave notice that they should quit and deliver up the premises. An action could not be maintained on the covenants of the lease against the four defendants, because they did not execute it. It is argued that an action could not be maintained on the covenants of the lease against the two defendants who executed it, because it is said to be apparent that it was intended that all four of the defendants should execute it, and it does not purport to be a lease to two of the defendants. But the defendants could have accepted the demise on the terms and conditions contained in the indenture without executing the indenture. In such a case the indenture would take effect as a deed poll, and a promise would be implied on the part of the defendants to perform the stipulations expressed in the indenture on their part to be performed. We think that the meaning of the agreed statement of facts is that the defendants, as a firm or partnership, accepted this lease and occupied the premises under it; and, therefore, the members of the firm became bound to pay rent according to the stipulations of the lease until the surrender of the term was accepted by the plaintiff. Codman v. Hall, 9 Allen, 335; Kabley v. Gas Light Co., 102 Mass. 392; Clark v. Gordon, 121 Mass. 330; Worster v....