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A. and B. were partners; the firm dissolved partnership July 12, 1883. A., on September 29, 1883, without the consent of B., secured a new lease of the premises in which the firm business had been carried on; the old lease expired October 1, 1883. Upon the termination of the original lease A. entered upon the premises and continued business therein, announcing himself as the successor of the firm. Whereupon B. filed a bill in equity for a settlement of partnership accounts, claiming that A. should account for the value of the renewal of the lease.

Joseph R. Rhodes and John G. Johnson, for appellant. Lee v. Vernon, 5 Brown Parl. Cas. 10; Lacy v. Hall, 1 Wr. 360; 2 Lind. Part. *574; Clernents v. Hall, 2 DeG. & J. 187; Clegg v. Edmondson, 8 DeG., M. & Gor. 787; Clegg v. Fishwick, 1 Mac. & Gor. 294; Keech v. Sanford, 1 Lead. Cas. Eq. 64; Sumner's note to Moody v. Mathews, 8 Ves. ; Mitchell v. Reed, 61 N. Y. 129; Speiss v. Rosswog, 96 id. 651.

Alfred Frank Custis, for appellee. Loughery first made an effort to get the lease of 1128 Market street, after the firm had dissolved its business, about July 25, 1883. The firm dissolved by limitation on the twelfth of July. Each partner was entitled to his capital, and onehalf the assets over the joint capital. There were no provisions in the articles of copartnership for any division of assets, except in kind. There was no supplemental agreement; no demand for a public sale. Division was made, in kind, of about every thing, excepting book accounts and the unexpired term of the lease. The premises were not needed for the liquidation of the firm's business. The lease contained no continuing or renewal clause. It prohibited assignments or sub-letting. It expired absolutely on September 30, 1882, but was, by consent, continued one year. Johnson bought another place before Loughery made application for a lease of the premises in mention. The master not only finds, against Johnson, that there was no agreement or bargain of any kind between these men, but that Loughery positively refused to agree that neither should occupy the premises for a year from July 12, 1883. Thus it becomes clear that there has been no fraud, deception or leading acts by the appellee. The English cases cited by the appellant do not, as both the master and the court below found, apply to the facts of the present cases. The New York cases and Lacy v. Hall are similar to the English cases. All these cases grew out of the acts of partners during the existence of the partnership or of some special agreement which, for certain purposes, continued the rights of partners. But in this case the parties had ceased to be partners, had divided partnership property. Moreover, the appellant has at no time asked to have the appellee declared a trustee for the firm of the lease in question. He only tries to charge the appellee with a value which he the appellant arbitrarily places upon the lease, and this, too, after the firm had held the premises as long as the firm lease continued, and notwithstanding that Johnson, from the twelfth of July to the present date, has done every thing in his power to destroy any value which the lease might have had. Granting all the appellant claims, he is entitled to no relief. A party who has sold the good-will of a business cannot solicit the old customers to cease dealing with the purchaser or give their cus

tom to him. Labouchere v. Dawson, L. R., 14 Eq. 322; Clinton v. Douglass, Johns. (Eng.) 174.

GREEN, J. There is no question at all that the tenant-right of renewal, although it may not be enforceable against the will of the landlord, is a property or asset incident to an existing lease, and is so recognized by all the authorities. When the lease is held by a partnership, this chance or opportunity of renewal is in itself a distinct asset of the partnership, in which all the partners have an interest. As a consequence of this doctrine one partner in a firm cannot take a new lease in renewal of an existing one of the firm in his own name or for his own benefit, without being liable to account for it to the partnership. In Lindley on Partnership, vol. 2, p. 574, the rule is thus stated: “İt has been decided more than once that if one partner obtains in his own name, either during the partnership or before its assets have been sold, a renewal of the lease of the partnership property, he may not be allowed to treat the renewed lease as his own, and as one in which his copartners have no interest." In Lacy v. Hall, 1 Wr. 360, this court said, STRONG, J.: "A partner in a firm who takes a renewal of a lease to the firm in his own name holds it for the firm, and that even though the lessor has refused to renew the lease with the old lessees. Featherstonaugh v. Fenwick, 17 Ves. 298. See, also, note to Moody v. Matthews, 7 Ves. 186 (Sumner's ed.). Yet the consideration for the new lease is the covenant of the partner who obtained it. But his relation to his copartner forbids his treating for it for his own individual benefit. And if he does so treat and obtains a lease in his own name, he holds in trust for the partnership."

In Clegg v. Edmonson, 8 De G., M. & Gor. 787, it is said: "Although it cannot be laid down that in no case can a partner during the partnership contract for a new lease to himself, exclusively, of property let to a partnership, it is very difficult and especially as regards a managing partner to make out such a case, and the mere announcement to his partners of his intention to apply for such a lease after the dissolution, is not sufficient to exclude their interest, although the partnership is at will."

This

Nor does the fact that the renewal was obtained after the dissolution change the rule. Thus in Speiss v. Rosswog, 96 N. Y. 651, the court of appeals of New York affirmed an opinion of the superior court of the city of New York, in which SEDGWICK, J., said: "The fact in this case which the learned counsel for the respondents argues distinguishes it from those cases in which the partner taking a renewal of the partnership leases has been held a trustee of the firm, is that the defendant, Constantine Rosswog, obtained them after the firm was dissolved. dissolution did not annul or change those relations between the parties which are the basis of the obligation in such cases. After the dissolution the original leases remained partnership property, for the purpose of liquidation. The obligation of each partner to deal with them, not for his individual benefit but for the common or joint interest, remained. The trust as to the use of the partnership property remained attached to these leases, as part of their value was the so-called expectation of renewal. This is deemed so actual and vital that when a new lease is

had it is considered to be a graft upon the old." 16 Jones & Spencer, 135.

This reasoning is in consonance with our views, and appears to be a necessary consequence of the partnership relation applied to what is clearly a partnership asset. The circumstance that there was no provision for a renewal contained in the old lease is immaterial. It is not the absolute right to a renewal, but the expectancy or opportunity of renewal, which pertains to a greater or less extent to all leases, that constitutes the property or asset in question. And this expectancy grows out of and belongs to the old lease, which being firm property draws to it the expectancy and clothes it with the same quality. In the present case the lease of the firm expired October 1, 1883; the firm was dissolved July 12, 1883, and the new lease was obtained by Loughrey on September 29, 1883, before the expiration of the old one. As the new lease was not made with the consent of Johnson, he has not lost his right to have Loughery account for the value of the expectancy thus appropriated by him. That value, however, must be determined by the master, it cannot be fixed or even indicated by us, and it must be determined as an expectancy only, and not as a certainty.

The decree of the court below is reversed at the cost of the appellee, and the record is remitted with direction that the cause be referred to the master to take testimony, and report the value of the expectancy of renewal, and thereupon to charge the appellee with the same as a partnership asset in the settlement of the accounts.

BERRIDGE V. GLASSEY.
January 31, 1887.

LANDLORD AND TENANT-LEASE-TITLE-FRAUD - MISTAKE

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If one in possession under claim of title is induced to accept a lease of the premises through the misrepresentation, trick, or fraud of the lessor, he is not estopped from setting up a title superior to that of his lessor. So, where a lease is made through mutual mistake of the facts, the lessee, if in possession when the lease was executed, may set up a superior title.

Error to the court of common pleas, No. 4, of Philadelphia county. Frailey and Glassey were the owners of adjoining lots of ground. Glassey built two houses, one fronting on Haverford street and the other on Rockland street. From some cause he built partly on Frailey's ground. Glassey having died, leaving his property to his wife, she, with Frailey, had a survey made, when the amount of the encroachment was accurately known. Mrs. Glassey not wishing to tear the buildings down, and Frailey not wishing to jeopardize his ownership by allowing her to retain possession, or to allow the use thereof without rent, they entered into the following agreement:

"Agreed the first day of December, of our Lord one thousand eight hundred and fifty-nine, between Leonard Frailey, of West Philadelphia, and State of Pennsylvania, of the one part, and Jane Glassey, the widow of the late Robert Glassey, who holds the estate of the said Robert Glassey, by will, of Philadelphia, and said State, of the other part, as follows: The said Leonard Frailey doth lease unto the said Jane Glassey, her heirs and assigns, a strip of ground whereon is

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erected a brick dwelling-house, shed and privy, which the said Robert Glassey Did build over on the property or line of the said Leonard Frailey, fifteen and a half inches on the front of Havourford street, thence running forty-nine feet, more or less south, to the south side of the above said privy; Also another strip of ground at the south end of said lot, which said Robert Glassey erected a frame house, over the line, also, of the said Leonard Frailey, of ten and a half inches, to the front of garden Street, running twenty-seven feet more or less north. The above property situated in Mantua, West Philadelphia, Havourford and Thirty-fifth streets, and now occupied by Chas. H. Rainier and others, for the term of Five years, from the first day of December next, for the yearly rent of Three Dollars, which said yearly rent the said Jane Glassey, doth for herself, her heirs and assigns, covenant and agree to pay to the said Leonard Frailey, his heirs and assigns, the said Rent.

"In witness whereof, we have hereunto set our hands and seals, the day and year above written Three Dollars, mentioned above, to be redused to two Dollars, before signd it was don."

Upon this lease rent was paid for twenty-three years.

Frailey died, leaving the property to his daughter, Mrs. Berridge, who not wishing to be bothered with so small an amount of annual rent, offered to sell to Mrs. Glassey, but as they could not agree upon terms, notice to vacate was given more than three months before the expiration of a year, and on failure so to do ejectment was commenced.

At the first trial, a claim was made that this agreement was a ground-rent deed. The trial judge The trial judge so held, and instructed the jury to find for the defendant, and judgment was entered on the verdict.

A writ of error was taken and the supreme court reversed that judg ment, holding that the agreement was a lease. See report of this case in 7 Eastern Reporter, page 16.

Upon the second trial, Mrs. Glassey claimed she was the owner and had executed the lease by mistake. The verdict was for defendant.

L. Alex. Simpson, for plaintiffs in error. The learned judge below seems to doubt the law of Thayer v. Society, 8 Harr. 62, but plaintiff in

can find no reason therefor, and it certainly is quoted with approbation as to this very point in Ward v. City of Philadelphia, Leg. Int., 1886, page 447, decided by this court, October 4, 1886. Besides there was no such mistake here as calls for equitable relief. McAninch v. Laughlin, 1 Harr. 375-6. Moreover it is now too late to ask that the lease be set aside on the ground of mistake. It was executed December 1, 1859, and for twenty-three years rent was paid under it. For three years longer the title was admitted, and was only questioned when the stress of the case required it. No one questioned that the defendant admitted the tenancy during all that time. The lease was offered in evidence, and no witness was called to show that it had ever been denied during the whole period. True, there is no express statute of limitation on the point, the matter resting in grant, but this court has by analogy always applied the statute of twenty-one years' possession. Crawford v. Neff, 3 Grant, 175; Wallace v. Fourth Presby

terian Church, 1 Amerman, 169–170. To the same effect are Hayes' Appeal, 18 W. N. C., and Sossong v. Rosar, 2 Amerman, 201; Wallace v. Fourth Presbyterian Church, 1 id. 169-170. If the language of the court, taken in connection with the circumstances of the case, may have misled the jury as to the law, it is error. Kissinger v. Thompson, 12 S. & R. 44; Hersheaur v. Hocker, 9 Watts, 455; Relf v. Rapp, 3 W. & S. 21; Wenger v. Barnhart, 55 Penn. St. 300; Gregg Township v. Jamison, id. 468; Penn. Railroad Co. v. Berry, 68 id. 272; Stall v. Meeck, 70 id. 181. Again it is said in Washington Mut. Fire Ins. Co. v. Rosenberger, 3 W. N. C. 16; s. c., 33 Leg. Int. 338: "A tendency to mislead in the general charge, though no particular portion of it be erroneous, is ground for reversal."

David Chambers and Wm. S. Price, for defendant in error. Mays v. Dwight, 1 Norr. 464; Baskin v. Seechrist, 6 Barr, 154; Hall v. Benner, 1 Penn. (P. & W.) 402; Hamilton v. Marsden, 6 Binn. 45; Brown v. Dysinger, 1 Rawle, 408-415; Koontz v. Hammond, 12 Smith, 177; Hockenbury v. Snyder, 2 W. & S. 240.

PER CURIAM. While a tenant cannot be permitted to controvert the title of his landlord under whom he entered into possession, yet if one in possession under claim of title is induced to accept a lease through misrepresentation, fraud or trick of the lessor, he is not estopped from setting up a title superior to that of his lessor. So we think if the lease be made through mutual mistake of the facts, by both parties, the lessee is not estopped from setting up her superior title, if she was in possession when she executed the lease. Judgment affirmed.

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