
    No. 1426.
    Alred Penn, Appellee, v. Kearny, Blois & Co., Appellants.
    NVbere a party baa leased, for a given time, certain described premises, including several bouses and lots oi groiind in t^e ci£y of New Orleans, and a ¿re breaks ou£ wbicb destroys “tbe buildings on á portion oí tbe leased premises,- tbe lésseo .}ias tbe option under art. 2607 of tbe C. C ,-to demand a revocation of tbe entire lease or a diminution pro tanto of tbe rate. He cannot retain tbe portion of tbe leased property unaffected “by tbe fire and bavo tbe lease revoked as to that wbicb was destroyed'.-
    Where tbe evidence shows that a commercial firm have enjoyed the benefits of a lease that has been made to and in tbe name of one of tbe members of tbe firm, they will be held liablo iu solido for tbe rent of tbe property leased.
    Evidence to show that the firin' name wás maréócí on-goods depositad in tbe warehouse is admissible in a’suit by tbe lessor tó rojover tbe rent.
    ñ-om tlie Second District Court of New Orleans, Thomas, J.
    
      Wm. ÍL JIunt, for appellee. George Í. Bright, for appellants.
   Howe, J.

This suit is brought to tecover $6,184 98 for rent of á warehouse and adjacent lots, let by plaintiff to. Alfred Kearny, the obligations of which hiring, it is alleged, were assumed by the defendants as a commercial firm. The rent is claimed from July 1,1861, to November 1, 1862. The defendants gave their notes,'in' their firm name,-for a portion of the rent up to November 1, 1861, and four of these re.nt notes, amounting, with costs of protest, to §1,489 98, form part of the sum sued for. The balance, $4,700, is for rent from November 1,1861, to November 1,1862.

The defendants, admitting the' execution óf the leases and rent notes sued on, acknowledged ait indebtedness of $615 '94 for rent to August 24, 1861, and deposited that sum in court. They further averred that on the twenty-fourth of August, 1861, the buildings and improvements belonging to plaintiff, upoji the property leased, were destroyed byfire, and the lease became canceled and annulled by the effect of law, and the revocation of said lease demanded by the lessor.”

The case was tried before a jury, who rendered a verdict for the sum claimed, less the amount paid into court, and the sum of $700 as diminution'of the rent; and from a judgment on this verdict, the defendants, after applying without success for a new trial, have appealed.

It appears that on the ninth of July, 1853, plaintiff leased to Alfred Kearny two of the lots ahd the warehouse, for $150 per month, from November 1, 1858, to November 1, 1859; that ón the fifteenth of February, 1859, he leased to the same a large lot lying next below the warehouse, and also another lot on Julia street, to first of November, 1859, at $130 per month; that oh the twenty-fourth of February, 1859, the plaintiff and Mr. Kearny executed a written instrument, in which, after reciting the foregoing leases, they expféss themselves as follows:

“Now, then, Alfred Penn aihd Alfred Kearny have this day entered into a contract of lease for the whole of the aforesaid property, measuring in the aggregate about two hundred and fifty-spveii feet front on Magazine street, and about eigbty-nine feet fronting on Julia street, running back to tbe lots fronting on Magazine street, and forming a bey to the same, viz: Alfred Penn releases to Alfred Kearny all of tbe said property for tbe term of three years from tbe first day of November next, 1859, to tbe first of November, 1862, tbe same being renewed with all tbe conditions and- privileges recited in every particular in the two aforementioned leases, with tbe exception of tbe price, which is hereby consolidated, and agreed upon at tbe rate of forty-five hundred dollars per annum to commence from the first day of November next and payable monthly, say $375 per month, said lessee agreeing to grant his'rent notes each year in advance for tbe same, say twelve notes of $375 each.”

In consideration of certain improvements made by plaintiff, tbe rent was further increased to $4,700 per annum.

On the twenty-fourth of August, 1861, a fire occurred on tbe lot lying next below tbe warehouse, on Magazine street, and a shed, fifty-four feet long and forty-seven feet wide, in tbe rear corner of that lot was destroyed. Tbe defendant, Kearny, ton days after, sent tbe following letter to plaintiff: •

“ Mr. Alfred Penn:

“Dear Sir — A portion of tbe buildings upon tbe premises situated on Magazine and Julia streets, which I rented from you, having been destroyed by fire, I now notify yon that I demand a revocation of the lease, and am no longer tbe lessee of tbe premises. Tbe merchandise now on tbe premises will be removed therefrom as soon as possible, not, however, before paying tbe rent due, which we are ready to pay on demand.

“ALFRED KEARNY.

“New OuleaNS, September 3,1861.**

. The letter was sent at a time when plaintiff was absent from the city, and it appears that about November 7, 1861, be notified defendant, Kearny, that be did not recognize tbe right of revocation, and offered to rebuild tbe shed. Tbe shed was, in fact, rebuilt about February 25, 1862; and it was for tbe seven months elapsing from tbe time of the fire to tbe time of tbe completion of tbe new shed that tbe jury allowed tbe diminution at tbe rate ot one hundred dollars per month — a sum apparently about equal to tbe proportion of rent for tbe whole lot on which tbe shed stood.

Tbe shed which was burned covered an area of about two thousand five.hundred square feet; tbe lot on which it stood contained about twenty-one thousand square feet; tbe whole property leased, including warehouse and adjoining lots, contained upward of fifty thousand square feet. Tbe defendants continued to occupy tbe warehouse, tbe upper Magazine street lot, and tbe Julia street lots; at least there is neither allegation nor evidence that they abandoned them. As for tbe lot on which tbe burned shed bad stood, tbe letter of Kearny of September 3, 1861, shows that they were still in occupation ten days after the fire, and, though mention is made of an intention to remove, there is no satisfactory evidence to show that they ever did really remove, and the burden of proof was certainly on them. There is evidence furnished by plaintiff, to show that they occupied the lot on which the shed was, burned until some time after the shed was rebuilt.

But even if we admit the positions of defendants that the agreement of,February 24,1853, was the only contract in force at the time of the fire; that the destruction of the shed gave to'defendants, under article 2667, C. C., the option to cancel the lease or to demand a diminution of rent, and that the defendants did remove from that portion of the premises on which the fire occurred, it is still difficult to perceive how the claim of cancellation of the whole lease and discharge from the obligations to pay any rent after the fire,, can be allowed. If the defendants had surrendered to plaintiff the whole premises, our conclusions might have been different, though even in such case it must be remembered that our laws do not favor the abrogation of leases where the lessor is not in fault. 6 A. 279; 12 A. 823; 17 A. 322. But when we find them remaining in possession of the principal portion of the object of lease, we must conclude that the diminution of rent allowed by the jury was an ample satisfaction of any right the defendants had under the circumstances.

In this connection we havo been referred by defendants to a passage from Marcado, volume 6, p. 448. The author is commenting upon article. 1722 of the Code Napoleon, the equivalent as to this case, of article 2667 of our Civil Code, and says:

“ La destruction partidle donne au locataire le clioix de le reseller, ou do le continuer sur se qui reste aveo diminution du, j¡¡rix; le simple en-dommagement ne permet la resiliation ne a l’une ni a l’autre des parties, et oblige seulement le bailleur a reparcr le degat pour- remettie la chose en bon etat.”

The doctrine quoted seems to be in favor of plaintiff rather than defendants, admitting that the destruction of the shed was such a “ destruction partidle” as to give the lessee the choice of canceling the lease or of continuing to occupy the remainder of the buildings, “ ee qui reste," at a reduced rate It is evident he cannot do both. If he cancel the lease he must give up the whole property,- .-If he “ continue to occupy what remains with diminution of rent,” he cannot cancel the lease. A right of choice between two methods is not a right to adopt both.

It is contended by the counsel for defendants that there is error in the judgment because it is rendered against them in solido; that the lease is signed by Alfred- Kearny; that there is no evidence to make the firm of Kearny, Blois & Co. responsible; and that if there be any, there is none to show that the firm is a commercial firm so as to bind the members in solido.

In Reynolds v. Swain, 13 La. 197, it was held by this court that where one of the defendants, sued as commercial partners, hired the premises in Ms individual name, but that the store was occupied until abandonment by the partnership, the latter circumstance showed that the contract was made for the affairs of the partnersMp; and the firm was therefore bound by tbe act of tbe partner, lessee, though made in bis indi-yidual name. Tbe case at bar is, perhaps, a stronger one in favor of plaintiff, since tbe firm of Kearny, Blois & Co., furnished rent notes under tbe lease of February 24, 1859, tbe one specially pleaded in tlio answer, occupied tbe premisos as we have seen, admitted in their answer the execution of tbe rent notes, made tender of tbe rent up to tbe time of tbe fire, and finally prayed that the lease might be annulled and canceled, and that tbe notes described in plaintiff’s petition be surrendered to tbe respondents.”

&nd we think it abundantly shown that the defendants’ firm was a commercial partnership. Tbe allegation that it was is not specially denied. We find from tbe evidence that tbe firm carried on their business in tbe leased premises, bad a stock of merchandise there, and that tbe merchandise was insured as such in tbe firm name. It will hardly be contended that such a business is not commercial.

Tbe defendants Teserve a bill of exceptions to evidence introduced by plaintiff that tbe defendants, in their firm name, were insured upon their stock of merchandise and upon a shed on tbe leased premises.

Tbe evidence was offered to prove tbe occupancy of tbe premises and the ownership of goods in them by tbe defendants during tbe time for which rent is claimed, and in this view is unobjectionable.

For tbe reasons given, it is ordered and adjudged that the judgment appealed from be affirmed with costs.

Rehearing refused.  