Voss v. Sylvester

• Decision Date: 21 September 1909
• Parties: VOSS v. SYLVESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

203 Mass. 233

89 N.E. 241

VOSS v. SYLVESTER.

Supreme Judicial Court of Massachusetts, Essex.

September 21, 1909

COUNSEL

Lincoln S. Simonds, for plaintiff.

Fredk. H. Tarr, for defendant.

OPINION

MORTON J.

This is an action of contract for rent alleged to be due from the defendant to the plaintiff under and by virtue of a written lease from the plaintiff to the defendant of certain premises in Gloucester. The jury returned a verdict for the plaintiff for the full amount claimed, and the case is here on the defendant's exceptions. The exceptions relate wholly to the second count in the declaration which was upon the written lease.

The lease purported to be a lease from the plaintiff to 'Frederick Sylvester and Mary Sylvester, copartners, of said Gloucester, under the name of Sylvester & Co., of said Gloucester.' It was duly executed by the plaintiff and was signed by the defendant with the name of 'Frederick Sylvester & Co.' It was not signed by Mary Sylvester, who was the plaintiff's wife. The defendant filed a plea in abatement setting up the nonjoinder of Mary Sylvester and also made answer that the lease was void because there was no such partnership as Frederick Sylvester & Co. and he was not liable thereon, and that by the plaintiff's acts the demised premises had been rendered unfit for occupancy and he had been evicted from the same. In regard to the plea in abatement certain facts were agreed to by the parties in open court from which it appeared that the plaintiff insisted that the defendant's wife should become a party to the lease, and that thereupon the words 'and Mary Sylvester, copartners, of said Gloucester, under the name of Sylvester & Company,' were written into the lease, and the defendant took it home and discussed the matter with his wife, and brought it back and executed it by signing the name of 'Frederick Sylvester & Co.' opposite the second seal; the plaintiff at the same time executing it by signing his name opposite the first seal. The defendant had been doing business for a number of years prior to the execution of the lease under the name of Frederick Sylvester & Co., and continued to do business under that name after the execution of the lease. There was no one in partnership with him during any of the time when he was so doing business. There was no occupancy of the premises under the lease or otherwise by the defendant's wife. Upon these and other facts agreed to by the parties the defendant asked the court to make various rulings relating to the plea in abatement. The presiding justice refused to make the rulings thus requested, and overruled the plea in abatement. The defendant duly excepted.

We do not find it necessary to consider the rulings thus asked for except so far as, if at all, they involve questions relating to the merits. Under Rev. Laws, c. 173, §§ 76, 96, 106, the decision of a single justice upon questions raised by a plea in abatement was final. This was so in regard to questions both of law and of fact. Guild v. Bonnemort, 156 Mass. 522, 31 N.E. 645. By St. 1906, p. 310, c. 342 exceptions may now be alleged to rulings upon questions arising upon pleas in abatement. But the concluding section of that statute expressly provides that 'this act shall not affect cases pending before the court at the date of its enactment.' St. 1906, p. 311, c. 342, § 4. The effect of this provision is to render the act inapplicable to pending cases and to leave such cases to be governed by the law in force at the time of the passage of that act. If it were not for this saving clause it would seem clear that the act relating as it does to matters of procedure, would apply to pending cases. See Stocker v. Foster, 178 Mass. 591, 60 N.E. 407; Kimbray v. Draper, [1868] 3 Q. B. 160; Donner v. Palmer, 23 Cal. 40; McNamara v. Minnesota R. R., 12 Minn. 388 (Gil. 269); Sedgwick on Statutory and Constitutional Law (2d Ed.) 161, note 'a'; Contra Uwchlan Township Road, 30 Pa. 156; Boston & Maine R. R. v. Cilley, 44 N.H. 578.

A husband and wife cannot contract with each other and therefore a partnership between them would be void. Rev. Laws, c. 153, § 2; Bowker v. Bradford, 140 Mass. 521, 5 N.E. 480. But although they cannot contract with each other they may contract with third parties and will be bound by such contract if properly entered into. Reiman v. Hamilton, 111 Mass. 245; Parker v. Kane, 4 Allen, 346. There being no partnership between himself and his wife, the defendant could not bind her by a partnership signature, even though all parties so understood and intended. The result was that he bound himself and no one else. Taft v. Church, 162 Mass. 527, 39 N.E. 283; Bowker v. Bradford, 140 Mass. 521, 5 N.E. 480; Wiggin v. Lewis et al., 12 Cush. 486. It is to be noticed that the signature which he affixed to the lease was not, strictly speaking, the name under which he and his wife were described as partners in the body of the lease, but was the name under which he had been doing and continued to do business on his own account. There was, therefore, nothing in the form of the signature inconsistent with his being the sole lessee, and as such liable for the rent.

The premises that were leased consisted of a blacksmith shop and a boiler shop so called. The blacksmith shop was on the first floor of a three-story wooden building in which were four tenements on the second and third floors. The boiler shop was a one-story wooden structure, with a board roof covered with tarred paper. It was built by the plaintiff in 1898, and a platform was constructed upon the roof for the use of the tenants occupying the tenements over the blacksmith shop. On this platform the plaintiff built three bins for the use of the tenants, and two water closets and a sink, with a pipe leading into the vault of the closets. There was a stairway leading from the street to this platform, and furnishing a back entrance to the tenements. The defendant occupied the boiler shop from 1898 to the date of the lease in June, 1900, as a tenant at will.

The defendant introduced evidence tending to show that the occupants of the tenements used the platform for chopping wood, washing clothes, and as a playground for their children, and that during the period that he occupied under the lease some of the tenants emptied wash water on the platform and made unclean uses of the water closets and sink, and that the platform got so out of repair that parts of the plank forming it broke and rotted away, and in consequence thereof and of the use made of it by the tenants foul water dropped through the roof upon himself and his employés and upon the machinery and materials, and that at times large quantities of rain water came through also. He also introduced evidence tending to show that he had repeatedly called the attention of the plaintiff to these matters and that the plaintiff had attempted to stop the leaks, but had not succeeded. He contended that in consequence of this condition of things the boiler shop had become untenantable and that he had been evicted therefrom. The plaintiff introduced evidence tending to show that the use that was made of the platform...