Emery v. Hill

• Decision Date: 17 March 1893
• Citation: 67 N.H. 330,39 A. 266
• Parties: EMERY et al. v. HILL et al.
• Court: New Hampshire Supreme Court

39 A. 266

67 N.H. 330

EMERY et al.

v. HILL et al.

Supreme Court of New Hampshire. Merrimack.

March 17, 1893.

Bill in equity by Edson J. Hill and others against George H. Emery and another. Case discharged.

January 15, 1885, the defendants leased to the plaintiffs, as partners under the firm name of James R. Hill & Co., a certain building in Concord, for the term of six years, "and if the said lessees shall so elect, and notify the lessors, in writing, of such election, three months, at least, before the expiration of said six years, for the further term of six years; making twelve years, in all, if such election is made as aforesaid." The lessees covenanted that they would "not lease or underlet said premises, or any portion thereof, or assign this lease, or any interests therein, without the written consent of the lessors." The plaintiffs, as partners, occupied the leased premises for the manufacture and sale of harnesses until May 15, 1888, when, with three others, they formed a stock corporation, under the statute, styled the James R. Hill Harness Company, and transferred to it all the assets of the firm, including all its real estate, and all the rights and privileges before possessed and enjoyed by it; the corporation assuming all the liabilities of the firm. By mutual consent the partnership was then dissolved. Thereupon the corporation, by its officers and agents, took possession of the premises, and still occupies the same; carrying on the same business as the partnership had been engaged in. The object of changing to the corporate method of doing the business was principally that of convenience. The nature and character of the business were in no way changed or affected; the plaintiffs sustaining the same relation to it as before, so far as its management was concerned. The defendants had general information that the plaintiffs and others had formed a corporation in 1888, which was apparently carrying on the business in which the firm had been engaged; but they did not know how the change affected the old firm, or that the corporation had succeeded to all its assets and liabilities, or that it had been dissolved, and its affairs closed up. The rent of the premises was regularly paid according to the terms of the lease, by checks signed by the firm name of James R. Hill & Co., until the formation of the corporation, since which time they have been signed, "The James R. Hill Harness Co.," by the treasurer, or the president. For these payments, as well after as before the formation of the corporation, the defendants gave receipts to "J. R. Hill & Co." September 5, 1890, a written notice addressed to the defendants was served upon them, which stated that "James R. Hill & Co., the lessees under a lease from Sophia L. Hill and others, dated January 15, 1885, of number 67 and 69 N. Main street, in Concord, hereby give notice that they elect to have the said lease extended for the additional term of six years from January 15, 1891, as provided in said lease. The James R. Hill Harness Co., Geo. H. Emery, Pres." December 12, 1890, the defendants wrote the plaintiffs that, as no notice had been given by them of a renewal, the lease would terminate January 15, 1891, but that they would be willing to lease the property to responsible parties at an increased rental. December 15, 1890, the plaintiffs addressed a notice to the defendants, electing to extend the lease for six years, and signed it by the firm name, and by their Individual names. The prayer of the bill is for specific performance of the defendants' covenant to renew the lease, but by agreement of the parties the only question submitted on the foregoing facts is whether the corporation is rightfully in possession of the leased premises.

Samuel C. Eastman and William L. Foster, for plaintiffs.

Streeter, Walker & Chase, for defendants.

PER CURIAM.¹ In the defendants' lease to James R. Hill & Co., it was stipulated that the lessees should "not lease or underlet said premises, or any portion thereof, or assign this lease, or any interest therein, without the written consent of the lessors." This is a valid stipulation, inserted for the benefit of the lessors. The lessees' ability and willingness to pay the rent promptly, and their careful use of the premises, including the reasonable preservation of the building from reckless or careless injury, and from destruction from fire, furnish some of the apparent reasons for this provision in the contract. Roe v. Sales, 1 Maule & S. 297. While the lessors were willing to make Hill &...