Brooks v. Allen

C. Allen, J.

According to the understanding of all parties, the rent was to be paid by Allen alone, and not by the firm. There could have been no pretence for holding the firm but for the fraud in respect to the guaranty of the rent. This fraud was practised by Allen alone, before the time when Dennan became his partner. There is nothing to show that Dennan had any more reason to suspect this fraud than the lessors had. The lessors relied only on Allen, and on his supposed guarantor, for the rent. Upon discovery of the fraud, they were entitled to treat the lease as invalid; or, at their option, they might treat it as valid. The lease was voidable,—valid till avoided.

The notice to quit for nonpayment of rent was no rescission of the lease : and if it were, it did not take effect till after fourteen days. There was no rescission of the lease till after the firm was in insolvency. Now, however it might be with regard to Allen alone, a rescission of the lease cannot relate back so as to make the firm liable for the use and occupation of the store prior to the time of such rescission. There was no express contract binding the firm; and there was no implied contract arising from the use and occupation, because the use and occupation were under an express contract with Allen. If the lessors were deceived and misled by Allen, that does not show an implied promise on the part of Dennan, or of the firm, until the happening of something further. Prior to the rescission the firm was not liable, because their use and occupation were by virtue of the lease to Allen, which was still in force. After the rescission the firm was not liable, because it no longer occupied the store, and the rescission did not have the effect to make it *203 liable for past use and occupation, enjoyed under a special contract or lease, by which Allen promised to pay the rent. Leonard v. Kingman, 136 Mass. 123 . Earle v. Coburn, 130 Mass. 596 . Massachusetts General Hospital v. Fairbanks, 129 Mass. 78, 81 . Central Mills v. Hart, 124 Mass. 123, 125 . Hills v. Snell, 104 Mass. 173, 177 . Boston v. Binney, 11 Pick. 1 .

The result is, that the claim was properly disallowed against the estate of the firm; and this is the only question before us. In respect to this, therefore, the entry must be, Appeal dismissed.