Opinion
01-22-1895
BECK v. EAGLE BREWERY OF NEWARK.
Walter L. Lyon, for petitioner. John R. Hardin, for defendants.
Petition by Herman Beck against the receiver of the Eagle Brewery of Newark. Dismissed.
Walter L. Lyon, for petitioner.
John R. Hardin, for defendants.
GREEN, V. C. The petition states that the petitioner, Herman Beck, and Frederick A. Lisiewski, on the 28th day of December,
1892, entered into an indenture of lease under their respective hands and seals, by which Beck demised and leased unto Lisiewski the store and three rooms on the first floor, and part of the cellar, of the building and premises, known as "No. 292 Fifteenth Avenue," in the city of Newark, for the term of three years from the 1st day of April, 1893, at the yearly rent of $600, payable monthly in advance. That on the 1st of April, 1893, the Eagle Brewery of Newark, with the consent of Lisiewski, leased the premises in the city of Newark for the term of three years from the 1st day of April,
1893, at the yearly rent of $600, payable monthly in advance; that on the 1st of April. 1893, the Eagle Brewery of Newark, with the consent of Lisiewski, entered into the demised premises, and rented them to one Wallenburg; that the rent was paid up to and including the month of June, 1894; that John R. Hardin, Esq., receiver of the Eagle Brewery of Newark, took possession of the demised premises, and collected rent therefor from Wallenburg, and that the receiver paid to the petitioner the rent for the premises for the months of August, September, and October, 1894, but refused to pay the rent for the months of July, November, and December, and asks that the receiver be requiredto pay him the rent for those months. An answer was filed by the receiver to this petition, and on the issue joined testimony was taken. The lease referred to in the petition was offered in evidence. It is under seal, dated September 28, 1892, and is between Herman Beck and Frederick LisIewski, by which the premises in question are demised and leased unto Lisiewski for the term of three years from the 1st day of April, 1893, at the yearly rent of $000, payable monthly in advance. It appeared that one Wallenburg went into possession of the premises, but when, under whom, or on what agreement, did not appear. It also appeared that the rent of the premises from April, 1893, to and including June, 1894, was paid by checks of the Eagle Brewery of Newark directly to Herman Beck, the lessor, but why, or on what agreement, if any, did 'not clearly appear. A chattel mortgage upon the fixtures in the saloon, made by Wallenburg to the Eagle Brewery of Newark, was offered in evidence, which mortgage has been assigned by the brewery to other parties. The Eagle Brewery of Newark, on the 26th day of July, 1894, was, as an insolvent corporation, put in the hands of John R. Hardin as receiver. Wallenburg continued in the possession of the demised premises, and Hardin, as the receiver, without any express contract with Mr. Beck, paid the amount of rent reserved in the lease to him for the months of August, September, and October. In the latter part of October, Mr. Hardin, by letter, requested Mr. Beck to come to the brewery, in response to which he went there, and was informed that Mr. Hardin proposed to give up the demised premises after the month of October. Mr. Beck said, "Very well," but that it was a matter he would have to see his lawyer about. Wallenburg still continues in possession, and Mr. Beck has taken no steps against him to turn him out. The corporation involved in this case is an insolvent one. The court has put it into the hands of a receiver, in order that its property may be equitably divided among its creditors. This application, if granted, would make Mr. Beck a preferred creditor for the amount claimed to be due. The unpaid rents accrued, partly prior to the de: cree of insolvency and partly afterwards. Assuming, for the moment, that the company was liable for the rent for the month of July, which became payable on the 1st of that month, it was the owner of no property on the demised premises to which a lien for the rent could attach; and, if Mr. Beck had any claim whatever against the company for the rent of July, it was as a general creditor, for which he should have filed his claim, and shared with the other creditors. I am, however, at a loss to understand on what theory the Eagle Brewery of Newark is to be held liable for the rent. It cannot be for use and occupation (Revision, p. 570, § 3), nor can it under this lease. It is not named in the lease. The lease is under seal. "The rule that an unnamed and unknown principal shall stand liable for the contract of his agent does not apply to a demise under seal. The relation between the owner of the land and those who occupy it is of a purely legal character, and the fact that the lessee takes a lease for an unnamed principal, but in his ownname, will not render the unnamed principal liable for the rent." Borcherling v. Katz, 37 N. J. Eq. 150; Walters v. Mining Co., 5 De Gex, M. & G. 629; Cox v. Bishop, 8 De Gex, M. & G. 815; Kiersted v. Railroad Co., 69 N. Y. 343. How was this situation changed by the appointment of a receiver, and by his action? No actual change in the possession of the property took place. Wallenburg continued there as before. The receiver took no actual possession of the demised premises. All that he did was to pay the rent reserved at the beginning of the months of August, September, and October. That imposed upon him no contractual liability to continue the payment of the monthly rent. It did not in any wise alter, in my judgment, the rights or liabilities of the original parties to the lease. He did all that he was called upon to do by considerations of justice, and more than it seems to me he was legally required to do, by notifying Mr. Beck in a way that he would know that the receiver did not propose to pay the rent after that month. I think the petition should be dismissed.