
    *D. & W. Kyle v. Roberts’s Ex’or and Others.
    December, 1835.
    Richmond.
    (Absent Ttjckeb, P., and Bkookis, J.)
    ¡Partnership — Agreement for a Lease — Unauthorized Action of Deceased Partner — Liability of Surviving Partners — Case at Bar. — M. a partner of the mercantile house of K. & M. takes a lease from E. to K. & M. of a tenement for a term of five years, at a yearly rent of 1000 dollars; the lease is by deed, signed and sealed by M. in the name of K. & M. without authority from his copartners to execute any deed binding them; the tenement is used and occupied for the partnership purposes, for two years of the term, and the yearly rents are credited to the lessor on the hooks of the partnership; then M. dies; his surviving- partners abandon the tenement: the executor and devisee of the lessor Ule a bill in equity, against the surviving partners and the administratrix of the deceased partner, for specific execution of the agreement for the lease for the use of K.. & M. which the deed executed by M. alone was intended to evidence, and for a decree against the surviving partners for the rents for the residue of the term, without alleging that the estate of M. the deceased partner is insolvent: IIbld,
    
      %. Same-Same — Same—Same.—The case is properly relievable in equity.
    
      ■z. Same — Same—Same—Same.—Though the deed of lease, and covenants therein contained, executed by M. alone, in the name of K. & M. was not obligatory on his partners, yet the agreement for the lease for the use of the partnership, of which the deed was intended as evidence, was binding on the partnership, and was not extinguished by the deed; and, as the partnership took the benefit of the lease, the surviving partners shall execute the agreement, and pay the rents for the whole term.
    3. Same — Same—Same — Memorandum — Statute of Frauds. — it seems, the deed signed by M. in the name of K. & M. is a sufficient note in writing of the agreement for the lease to the partnership, to take the case out of the statute of frauds, as to them,
    4. Same — Interest—Rent in Arrear. — But no interest shall be allowed on the balance of rents in ar-rear.
    David Kyle, William Kyle and David Mays were partners of the mercantile house of Kyles & Mays at Lynchburg, and Mays was the acting partner of the house there. And by articles under seal, between Lnoch Roberts and Kyles & Mays, dated the 5th May 1818, Roberts 'x'leased to Kyles & Mays, a house with a kitchen &c. in Lynchburg, for the term of five years, from the 1st June 1818 to the 1st June 1823, for a rent of 1000 dollars a year, payable quarter yearly. This instrument was signed and sealed by Roberts, and by Mays, in the name of the firm, Kyles & Mays; but neither of the Kyles authorized him to execute it for them. Mays, and after him Roberts, died during the term of five years.
    William Davis, the executor of Roberts, and Matilda Roberts, his widow and dev-isee, exhibited a bill in the superiour court of chancery of Lynchburg, against David and William Kyle, surviving partners of Kyles & Mays, and Mary Ann Mays, ad-ministratrix of the deceased partner Mays, —setting forth the articles of the 5th May 1818, and alleging, that the house of Kyles & Mays, which was carrying on an extensive trade in dry goods, entered on the premises in pursuance of the case, and occupied and enjoyed the same, paying the stipulated rent quarterly, until the death of Mays: that Roberts, the lessor, in his lifetime, had many dealings with Kyles & Mays, purchasing goods of them, and receiving part of the rents of the premises; and after his death, his widow and devisee, the plaintiff Matilda, had also purchased goods of them, for which Davis, the executor, was willing that a credit should be allowed against the rents due from Kyles & Mays on the lease; but all these accounts remained yet unsettled : that David and William Kyle, the surviving partners, now insisted, that they were nowise bound by the covenant executed by their deceased partner Mays, since they had not executed that deed, or given Mays authority to execute it for them; and that by agreement with Mays, the partnership was only to be liable for a rent of 600 dollars, for a house for the transaction of the partnership business; that if this was true, the administratrix of Mays was bound to pay 400 dollars of the rent; but the plaintiffs believed there was no such agreement between the xKyles and Mays, and if there was, Roberts, the lessor, was not privy to it, but intended to lease the premises to the house of Kyles & Mays, for the yearly rent of 1000 dollars, to be paid by the partnership; and if the partnership was not bound by the deed which was executed by Mays alone, yet it was bound by the contract made by Mays for its benefit, of which that deed was only the evidence, since the partnership had actually taken and enjoyed the benefit of it, and the rent reserved was perfectly reasonable, and had been credited to the lessor in his accounts with the partnership, on its own books, at the stipulated rate of 1000 dollars yearly: that the Kyles refused to pay more than 600 dollars of the yearly rents accrued before Mays’s death, and refused to pay any of the rents accrued since: and that the accounts between Kyles & Mays, and Roberts, in his lifetime, and the plaintiffs since his death, having none of them been settled, it could not be known how much of the rent was due, or what proportion thereof was properly due to Roberts’s executor, and what to his devisee; and therefore, the executor and devisee joined in this bill. And the bill called on David and William Kyle to render the accounts; and prayed, that all the accounts should be settled, and a decree against David and William Kyle, the surviving partners, for the balance that might be found due of the whole of the rents for the whole term of five years, and general relief.
    David and William Kyle answered, that they had never assented to or sanctioned the lease executed by Mays, or authorized him to execute any such deed; they were not bound by the deed ; the plaintiffs’ proper remedy was an action at law against the representative of Mays; and they had no just claim to relief in equity against the surviving partners: that Mays was authorized to take a house for the business of the partnership at a rent not exceeding 600 dollars a year: that the partnership was not bound to furnish him a house for the accommodation *of his family: that a part of the tenement leased by Roberts to Mays, was occupied for the use of the partnership, until Mays’s death, but not the whole of it; the other part having been occupied by Mays, in his lifetime, as a dwelling: that the yearly rent of 1000 dollars for the whole tenement, was most unreasonable: and that though it was true, that credits for the rent at the rate of 1000 dollars a year, to Roberts in his lifetime, and to his widow since his death, had been entered on the books of the partnership, yet the surviving partners had never been apprised of the fact till after Mays’s death. And they exhibited all the accounts on their books.
    Mary Ann Mays administratrix of David Mays, answered, that she believed the lease of the tenement was taken by Mays, for and on account of the partnership: that the upper part of the tenement was occupied by her husband and his family as a dwelling, and she expected to be charged for the use and occupation thereof, in the settlement of accounts between her intestate’s estate and his surviving partners, for which a suit was then pending: that the surviving partners had taken possession of all the partnership property; and that nothing of her intestate’s estate had yet come to her hands.
    Depositions were taken and filed by the plaintiffs, proving that the yearly rent of 1000 dollars reserved in the lease, was the reasonable yearly value of the tenement. And it appeared by the accounts taken from the books of Kyles & Mays, and exhibited by the defendants, that the rents had been credited in those accounts, to the lessor in his lifetime, and his representative since his death, at the rate of 1000 dollars a year, till the 31st March 1821.
    The chancellor referred the accounts to a commissioner; who reported, that rents were due to the plaintiffs, at the rate of 1000 dollars a year, from the 31st *March 1821 to the 1st June 1823, the end of the term. He also reported the accounts of Kyles & Mays, and of the house after Mays’s death, against the lessor in his lifetime and his widow since his death, as the surviving partners had rendered them, on which a balance of' 812 dollars was claimed against the widow; but there was no proof of the justice of these accounts; and Mrs. Roberts the widow admitted, that 487 dollars, but no more, was due from her, on the 1st August 1822, to be credited against the demand for rents, as of that date.
    The plaintiffs excepted to the report, because interest was not allowed them on the balance of rents reported to be due.
    The defendants, D. and W. Kyle, excepted to the report — -1. Because, as Mays had died, during the term, and they had occupied the premises since his death, and as there was no written contract of lease signed by them, or by any person authorized by them, the-lease for the term of five years, was nowise binding on them, by the statute of frauds, 1 Rev. Code, ch. 101, § 1, p. 372, and if they were chargeable for use and occupation, that charge could not be carried beyond the time-of actual occupation. 2. Because if they were chargeable for use and occupation, after they ceased to occupy the tenement, the rent charged was too high. 3. Because a due proportion of the rent ought to have been ' charged to Mays’s administratrix. And 4. because there was no credit given for 812 dollars, the balance of their account rendered against the plaintiff Mrs. Roberts, which accounts, having been called for by the bill, were evidence.
    The chancellor, on the hearing, overruled all the defendants’ exceptions to the report; and declared, that though the deed of May 1818 was not such a contract as would bind the surviving partners of Kyles & Mays, who did not execute it, in an action of covenant at law, yet it was written evidence of a contract for the lease “of a house for the use of the partnership, which was such a contract as one partner might bind the partnership to perform; and, as the partnership had entered on the premises, and occupied it for several years, in the transaction of their mercantile business, paying the rents reserved in the contract from time to time, the court therefore regarded the contract as binding in equity on the surviving partners: and that, as it was at least doubtful, having regard to the peculiar circumstances of the case, whether the plaintiffs could have distrained the goods of the surviving partners for the rent in arrear, therefore they were entitled to interest on the same. Therefore, the court decreed, that the defendants David and William Kyle should pay the plaintiffs 1699 dollars (being the balance of the rents in arrear, as reported by the commissioner, after crediting 487 dollars, admitted by the plaintiff Matilda Roberts, to be due from her, on the 1st August 1822), with interest on the balance of rents till paid.
    From this decree, the defendants David and William Kyle appealed to this court.
    Johnson, for the appellants,
    said, 1. That the case was not properly relievable in equity, since the executor had a plain remedy at law, by action of covenant against the administratrix of Mays, who had executed, and who was certainly bound by, the articles of May 1818, and whose estate was solvent; and the question how much of the rents ought to be paid by Mays’s estate, and how much by the partnership of Kyles & Mays, was a question to be determined in the settlement of the partnership accounts, between the estate of the deceased partner and surviving partners. 2. That the deed of May 1818, not having been executed or authorized by David and William Kyle, was nowise binding on them, and could not be regarded as a note in writing of an agreement on their part, for a lease of five years, and so the *agreement was void by the statute of frauds; or, if the deed could be regarded as a note in writing of such an agreement by the partnership, then an action at law on the agreement would have lain against the surviving partners, and there was no ground for resorting to the court of equity for relief. 3. That the court ought to have decreed such portion of the rents, as were justly due for the part of the tenement which was occupied by Mays for a dwelling, and not for the use of the partnership, against Mays’s administratrix, since she admitted that her intestate’s estate was justly chargeable with that. 4. That the accounts of Kyles & Mays against Mrs. Roberts, having been called for by the bill, should have been taken as prima facie evidence at least, of the balance due from her; and a credit ought to have been allowed for the whole balance appearing on those accounts, instead of only so much of it as she admitted. 5. That the decree was erroneous in allowing interest on the rents. The ground on which it was allowed, was, in effect, that the rents were not due at law, but onlyr in equity; which, he said, was a strange reason for giving interest in chancery, which a court of law would not have allowed, if the demand for the rents had been a legal one. He cited the cases decided by this court, on the question of allowing interest on rents in arrear; Graham v. Woodson, 2 Call 249; Skipwith v. Clinch, Id. 253; Cook v. Wise, 3 Hen. & Munf. 463; Newton v. Wilson, Id. 470; Dow v. Adams, S Munf. 21; Michie v. Wood’s ex’or, 5 Rand. 571.
    Leigh, for the appellees,
    answered, 1. That though the lessor’s executor might have maintained an action at law against Mays’s administratrix, yet if the plaintiffs had also an equitable demand against the ■surviving partners of Kyles & Mays, the existence of a right of action at law against the former, was no reason for denying the equitable relief they were entitled to against the 'Matter. It was true, Mays’s estate was solvent; but then, it consisted of his share of the partnership effects, and these were in the hands of the surviving partners. These rents were a debt of the partnership, which, though extinguished at law by Mays’s covenant, was not thereby extinguished in equity. He cited Sale v. Dishman’s ex’ors, 3 Leigh 548, as conclusive of the question of right, as well as the question of jurisdiction. 2. He said, that if Mays had signed the instrument of May 1818, without sealing it, that would have been such a note in writing of the agreement of the partnership for the lease of five years, as the statute of frauds required; and it would be strange, if the putting of a seal to the signature of Kyles <& Mays, should make it less a note in writing of the agreement. 3. Taking these rents to be a debt of the partnership, it was right to decree it against the surviving partners, leaving them to charge so much of it as was justly chargeable to the estate of the deceased partner, in the settlement of the partnership accounts. 4. The accounts of Kyles & Mays against the plaintiffs, were called for in the bill, for the purpose of shewing that the partnership had paid the rents, and how much of them had been paid. That there was no admission of the justice of those accounts, was obvious, since the plaintiffs did not know, at the time, what they were, and prayed a settlement of them. 5. As to interest on the rents, he said, there was no reason why interest should not be allowed on a just equitable demand, as well as on a legal one; that the principal reason why interest was not, in general, allowed on rents in arrear, was, that the lessor had a summary remedy for them by distress. This was shewn by the cases cited for the appellants. And in Graham v. Woodson, the court said, that it was discretionary in the court, to allow interest or not; that, in that case “the defendant had no title to have it taken off, as he had endeavoured *to defeat the rents altogether, and thereby delayed the paymentwhich was exactly what the defendants had done in this case.
    
      
      Interest — Rent in Arrear. — Interest, cannot be recovered, as of course, in actions for the recoven' of rent in arrear, but may be given under circumstances to be iudged of by the jury. Dow v. Adam, 5 Munf. 21; Mickie v. Wood, 5 Rand. 571; Graham v. Woodson, 2 Call 249, and note; Skipwith v. Clinch, 2 Call 253, and note. And Interest is not recoverable, by way of damages, in an action of debt for rent arrear. Cooke v. Wise. 3 Hen. & M. 463; Newton v. Wilson, 3 Hen. & M. 470.
      See also, monographicnoteo-a. “Interest” appended to Fred v. Dixon, 27 Gratt. 541.
    
   The court held that the decree was erroneous in allowing interest on.the rents, and therefore reversed it with costs; and it remanded the cause for further proceedings, with directions to allow the appellants to adduce proof, if they could, of the balance of their claim against Mrs. Roberts, beyond what she had admitted.  