( 16 )
April 2 andMay 6.
PANIS APPUHAMY u. SELENCHI APPU et al.
O., Negombo, 4,492.
Lease—Action for rent—Liability of joint lessees—Construction of deed of
lease—Intention of parties—Obligation in solidum.
When two or more persons have joined in stipulating for the paymentof a certain sum of money, each is ordinarily liable to pay a quota ofthat money.
It is only when the intention of the parties is clearly expressed thateach person shall severally pay the whole, that each person becomesbound in solidum.
Where two lessees covenant to pay a certain sum of money as rent,and there are no words in the lease clearly showing that each lesseebound himself in solidum,—
Held, that each lessee is not severally liable for the payment of thewhole rent.
HE facts of the case are set out in the judgment of Layard,C.J. . The appeal was heard on the 2nd April, 1908.
W. Aserappa, for defendant, appellant.
No appearance for respondent.
Cur. adv. vult.
5th May, 1903. Layard, C.J.—
This action has been brought- by the executor of the deceasedlessor of certain immovable property against two joint lesseesto recover certain rent due under the lease, and the executorsought to have the two lessees declared jointly and severallyliable to pay the whole rent claimed. The District Judge, afterpointing out that there was no provision in the lease stating thatthe two lessees were jointly and severally liable, held that as bothdefendants joined in the lease they were jointly and severallyliable, and a decree was entered against them in the Court belowin terms of that judgment. They have appealed against thatjudgment and decree, and contend that they are not each of themliable in solidum.f,,
The Roman-Dutch Law authorities appear to lay down that anobligation contracted generally by several, persons is not anobligation bindiig * on each of them in solidum, unless there issomething in the native 'of the subject to induce a "differentconstruction and reader it several in respect of the separateinterests of the contracting parties.
In the lease now under consideration therp are no words showingthat the obligation had been contracted by the lessees in solido.
Iii Terunnanse v. Ounasekara (1 N. L. R. 206) this Court heldthat one of several lessors may sue for his share of the rent, and thepassage in Voet referred to by Chief Justice Bonser in his judgmentis applicable to a case of plurality of lessees as well. Voet (lib. 19,tit, 2, section 21) lays down as follows:—Locati actio est personalisbonae fidei quae locatori datur, atque etiam conductori, qui id, quorconduxerat, alteri tutsus sublocavit, si plures locaverint, singulispro sud parte; contra conductorem, et, si plures sint, contrasingulos pro rata, nisi aliud nominatim pacto actum sit, autapparent locatorem singulorum personas in solidum respemsse etita duos pluresve in solidum fecisse reos locationh. Mr. Berwicktranslates the above passage thus:—“ The aqpio locati—which is apersonal action, bond fide, given to the locator and also to aconductor, who has sublet to another what he has taken on rent,and if there has been a plurality of locators, to each for his share—lies against the conductor, and if there is a plurality of theseagainst each of them pro rata, unless it has been expressly agreedotherwise or it appears that the locator had looked to each insolidum, and so two or more persons had become liable on thehiring for the whole ”. (Berwick’s Translation, New Edition,p. 219.) Further, with regard to co-obligors generally, I find it laiddown by Vanderlinden (lib. 1, chap. 14, sec. 9, para. 7, Henry’sTranslation, p. 203):—“ However, an obligation may be entered intoby which each party may be bounded or entitled in solidum, whenthis is the object of the several parties, provided however that pay-ment made to one of the parties frees all the others. This is entitledan obligation in solidum, and, according to the general rule, has noplace, but when expressly stipulated, except in some few cases, aswhen the partners of any firm enter into any contract on accountof their trade, or when several persons are charged with one andthe same guardianship, or when several persons have conspiredtogether and are equally principals in the commission of somecrime and are thus equally liable in damages, or have contractedtogether a debt yin solidum and are each liable for the wholewith respect to the creditor, though among themselves the debt isdivisible (thus with respect *to the creditor, they have not thebeneficium divisionis, or right to split the demand; yet withrespect to each other, when one has paid the whole, he is entitledto demand from the 'creditor a cession of his right* o^f action* agfeinstthe other 'co-debtors, which he cannot refuse and in case he shoulc(be unable to give this cession of action, he wqpld lose his right ofsuing in solidum any of the parties to»the obligation”; and byPothier (pt. II., chap. 8, art VIII., section 11. See vol. I. of Evans’Translation, p. 147):—“ Solidity may £e stipulated in all contracts
( ib ;
1003. of whatever kind. But regularly it ought to be expressed; if it is.
A 2 5*^ no*> wkere several persons have contracted an obligation in favour
' of another, each is presumed to have contracted as to his own part,
Layard, C.J and thiB is confirmed by JuBtinian in the Novel, 99. The reason isthat the interpretation of obligations is made in cases of doubt infavour of debtors, as has been shown elsewhere ”. In a later passagePothier mentions certain cases in which solidity between several“ debtors of the same thing ” takes place, although it is not expresslystipulated. The cases given by Pothier are those enumerated byYanderlinden in the passage cited by me above. As a furtherexception (see vol. Evan's Translation, p. 146) Pothier mentions11 the case of indivisible obligations which are not susceptible ofparts ”. In such a case each obligor is as completely bound for theperformance of the whole as if he alone had contracted theobligation, although the obligation does not expressly state that itis contracted in solido.
According to the above-cited authorities the law appears to beas follows:—When persons have joined in stipulating for thepayment of a certain sum of money, each is ordinarily liable topay a quota of that money, and it is only when the intention ofthe parties is clearly expressed, that each is severally bound forthe payment of the whole, that each person becomes liable insolidum.
Here we have an ordinary contract of lease by two lessees inwhich they covenant to pay a certain sum by way of rent, andthere are no words in the lease clearly showing that each lesseebound himself in solidum, and each lessee is consequently notseverally liable for the payment of the whole of the rent claimed.
The judgment of the District Judge must be modified in so faras it finds each of the defendants severally liable for the paymentof the whole rent due and claimed in this action.
The appellants are entitled to their costs of appeal.
Moncreiff, J.—I agree.
PANIS APPUHAMY v. SELENCHI APPU et al