Reynolds v. Swain , 13 La. 193 ( 1839 )

Martin, J.,

delivered the opinion of the court.

The plaintiff claims from the defendants, commercial partners, in solido, one year’s rent of a store, payable by monthly instalments, they having left the premises before the expiration of the lease.

The defendants pleaded the general issue.

The court gave judgment in solido, for fifteen hundred dollars, with leave to take out execution for the sum of eight hundred and seventy-five dollars, being the amount of rent due and payable at the date of the judgment, and so from .month to month, for the sum of one hundred and twenty-five dollars, until the whole be paid. The defendants appealed.

Their counsel has contended, that the premises were rented by one of the defendants, in his own name, and, therefore, the partnership is not bound for the rent.

2nd. The suit was premature, for part of the rent was not due at the time it was brought.

It appears that one of the defendants rented the premises} verbally, and afterwards a written lease was offered for his signature, in which his individual name was used. But it appears, also, that the store was occupied by the partnership until it was abandoned. This latter circumstance shows that the contract was made for the affairs of the partnership ; it is, therefore, bound by the act of one of the partners, though made in his individual name. Even in an ordinary partnership, the contracts of a partner, though without the authority of the others, bind them, provided it be proved that the partnership was benefited by the transaction. Louisiana Code, 2845.

In the case of Christy vs. Cazanave, 2 Martin, N. S., 451, this court held, that if the tenant abandoned the premises during the lease, he is bound for the rent for the whole term at once. It has been contended, that this decision took place under the civil laws of this state, which were repealed in 1828, and before the promulgation of the Louisiana Code, which provides that the Spanish, Roman, and French laws, . * . ... . _ . . . ; which were in force in this state when Louisiana was ceded to the United States, and the acts of the legislative council, 0f (he legislature of the territory of Orleans, and of the legis-iature of the state of Louisiana, are repealed in every case, which are specially provided for by that code, and that they shall not be invoked as laws, even under the pretence that . . 1 their provisions are not contrary or repugnant to those of the code. See Louisiana Code, article 3521.

Where a tenant ieused°'premises before the expí-lease, he is at thcTrenTof the whole term and may be sued. The repeal of the Roman, french own laws, in the arti-ele 3521 of the Louisiana Code, ine acT S" oniy embraces positive, written or statute laws of o^Uhs^'state) such as were in-tfoductory of a new rule, and the "established Faw^antTsettied by the decisions tice°mtS ° JUS"

The repeal spoken of in the code, and the act of 1828, cannot extend beyond the laws which the legislature itself had enacted; for it is this alone which it may repeal; eodem modo quiquit constitutur, eodem modo dissolvitur.

The civil or municipal law, that is, the rule by which particular districts, communities, or nations are governed, being thus defined by Justinian — “jus civile est quod quisquí sibi populus constituit." 1 Blackstone's Commentaries, 44. This is necessarily confined to positive or written law. It cannot be extended to those unwritten laws which do not derive their authority from the positive institution of any people, as the revealed law, the natural law, the law of nations, the laws , , , ’ ... „ ’ . . of peace and war, and those laws which are founded in those relations of justice that existed in the nature of things, antecedent to any positive precept. ' r

, , , , „ . , _ We, therefore, conclude, that the Spanish, Roman, and French civil laws, which the legislature repealed, are the posi-(¡ve written, or statute laws of those nations, .and of this state : , . , , and onlysuch as were introductory of a new rule, and not those which were merely declaratory — that the legislature did not jntend to abrogate those principles of law which had been ° 1 /. established or settled by the decisions of courts of justice,

Testing the judgment of this court, in the case of Christy YS‘ Gazanave, by these rules, we do not find it grounded on any statute of Spain, of the late territory or the present state. We know not any Roman of French statute which was in force in this country at the period of the cession, and to which the repeal in the code and the act of 1828 could extend. Nevertheless, it is the daily practice in our courts to resort to the laws of Rome and Prance, and the commentaries on ’ _ those laws, for the elucidation of principles applicable to analagous cases. Although the Roman law, on which the case of Christy vs. Cazanave was determined, had no intrinsic authority here, the reason that dictated that law has great cogency. 'When a tenant removes his goods from the premises, and abandons them, he withholds from the landlord the pledge he had given for the payment of the rent. It is, therefore, just that the latter should be permitted immediately to secure himself, if he can, by the seizure of the property removed, or by a personal action against the tenant.

The district judge has provided for the security of the • latter, by directing that the execution should not immediately issue for more than the amount of the debt actually payable; and afterwards, at the end of every month, for the monthly rent, affording him the opportunity of seeking relief, if he has any right thereto, on account of any rent received by the plaintiff from other tenants.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.