
    REYNOLDS VS. SWAIN ET AL.
    APrEAL PROM THE COURT OP THE PIRST JUDICIAL DISTRICT, JUDGE WATTS PRESIDINQ.
    A contract of lease, either verbally or in writing, made by one partner, is binding on the partnership, when it appears the firm occupied the leased premises, and in which the affairs of the partnership were conducted.
    
      Even in ordinary partnerships, the contract of one partner, made without the authority of the others, is binding on them, if it appears the partnership was benefited thereby.
    Where a tenant abandons the leased premises before the expiration of the lease, he is at once bound for the rent of the whole term, and may be sued.
    The repeal of the Roman, Spanish and French civil laws, in the article 3521 of the Louisiana Code, and the repealing act of 1828 only embraces the positive; written or statute laws of those nations and of this state, such as were introductory of a new rule, and did not abrogate the established principles of law, and settled by the decisions of courts of justice.
    The principles settled in the case of Christy vs. Cazanave, 2 Martin, N. S., 451, making tenants who abandon their lease, liable at once for the rent of the whole term, although drawn from the Roman civil laws, which have no intrinsic authority here, yet the reason of them has great cogency, and are adopted for the elucidation of principles applicable to analogous cases.
    This was an action on a verbal lease, to recover the sum of fifteen hundred dollars, for one year’s rent, due and to become due.
    
    The plaintiff alleges, that he leased to the defendants, W. W. & T. Swain, through his agent, by verbal agreement with W. W. Swain, a certain brick tenement, on the corner of Poydras and Magazine streets, in the city of New-Orleans, for the price of fifteen hundred dollars per annum, payable in monthly instalments of one hundred and twenty-five dollars, each as they became due; the lease to commence the 1st day of November, 1836, and continue for one year. He further alleges, that the defendants occupied the leased premises, as apothecaries, under the firm of W. W. Swain & Co., from the 1st of November, 1836, until the last of December following, (two months,) and then abandoned and removed from them without cause, refusing'to pay the rent; that they have thereby violated their said lease, and become liable for the entire amount thereof. He then prays judgment in solido against the defendants, for the whole sum claimed.
    
      This suit was instituted the 26th of April following the commencement of thejease.
    The defendant pleaded a general denial. Upon these pleadings and issues the cause was tried.
    The plaintiff introduced as a witness the agent who made the contract of lease, who deposed, that he leased (he brick tenement or store mentioned, to the defendants, for one year, commencing on the 1st of November, 1836, for the price of fifteen hundred dollars, payable monthly, in instalments of one hundred and twenty-five dollars each. That this agreement was made verbally with ffm. W. Swain, one of the defendants, at the time the lease was to begin, and that about fifteen days afterwards he piesented a written lease to ¡the defendants, who refused to sign it. He then told them he would hold them responsible for the rent on their verbal -lease. It appeared, the firm of Wm. W. Swain & Co., which was composed of the defendants, occupied the premises about two months, and left them without any cause.
    The plaintiff’s agent refused to receive the keys, and wrote them a note that he would hold them responsible for the lease.
    This testimony was corroborated by another witness, and by the written lease which had been tendered.
    The district judge was of opinion, the verbal lease was proved, as also its violation by the lessees, and that the plaintiff was entitled to recover the entire sum claimed. Judgment was rendered in favor of the plaintiff for fifteen hundred dollars, with leave to take out a general execution or special execution of seizure of the property on the premises, subject to privilege for the rent, for the sum of eight hundred and seventy-five dollars, being the amount of rent due the 1st day of June instant, and so on from month to month, for the sum of one hundred and twenty-five dollars per month, on refusal of defendant to pay the same. The defendants appealed.
    
      Curry, for plaintiffs,
    contended, that the testimony showed that the defendants occupied for a while the premises men-tionecl in the petition, nnder a verbal lease, made for one year, from the 1st of November, 1836, for which they bound themselves to pay the sum of fifteen hundred dollars in monthly instalments of one hundred and twenty-five dollars, from month to month, until the expiration of the lease. This is the amount of the sum claimed.
    2. The testimony further shows, that the defendants abandoned and violated their lease, at the end of two months after the commencement of the term, without cause, and have refused to pay the rent. These facts being shown, the plaintiff" is entitled to sue at once and recover the sum of fifteen hundred dollars for rent due and to become due on said lease. The law authorizes landlords, and secures to them the privilege of enforcing the contract of lease for the whole term, if the tenant leaves the premises before the expiration of the lease. See Christy vs. Cazanave, 2 Martin, Jf. S., 451.
    3. The district judge gave judgment in solido against the defendants for the sum claimed, but only allowed execution to issue for the sum actually due at the time, and for the balance, to issue from month to month until it is all paid. The plaintiff does not complain of this judgment, and prays that it be affirmed with costs.
    T. Slidell, for the defendants and appellants,
    insisted, that a partnership and the property of the firm, cannot be made liable for the debt or contract made separately and upon the individual responsibility of one of the partners, as was the case here. The testimony shows, that the contract of lease was made with Wm. W. Swain individually. It would be doing injustice to the other partner, who had no contract with the plaintiff; and to the partnership creditors, whose claims on the partnership property should be first paid.
    
      2. This suit was prematurely brought, as to that part of the rent claimed, which was not due at the time of the institution of suit; and the judgment should be reversed for that amount. The case of Christy vs. Cazanave, which is relied on to sustain the plaintiff’s demand, for the entire amount of rent, due and to become due on this lease, cannot have the force of authority. It was decided in 1824, before either the adoption of the Louisiana Code, or passage of the act of 1828, both of which expressly repeals all the civil laws not contained in the code. This decision is founded on an express provision of the Roman civil law, which has long r r 4 7 ° since been repealed in this state.
    A contract of lease verbally or in ■writing, made by one partner, is binding on the partnership, when it appears the firm occupied the leased premises, and in which the affairs of the partnership were conducted.
    Even in ordinary partnerships, the contracts of one partner made without the authority of the others, are binding on them, if it appears the partnership was benefited thereby.
   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.  