American Bicycle Co. v. Hoyt, 118 Wis. 273

American Bicycle Co. v. Hoyt

118 Wis. 273 | Wis. | 1903

Cassoday, C. J.

The decision in this case necessarily turns upon the construction to be given to the clause of the lease quoted in the foregoing statement. The court found that one of the buildings upon the leased premises was destroyed by fire. It is, in effect, conceded that such destruction by fire was “without any default or neglect of the lessee,” and that to that extent the premises became “untenantable and unfit for occupancy.”' The clause of the lease in question was applicable “in case any building” on the leased premises should be so destroyed. As applied to the facts in the case, it provides, in effect, that, “in case any building or buildings on said premises” shall be so destroyed, “the lessee shall not be liable or bound to pay rent to the lessor until the same are rebuilt or'repaired, or he may thereupon quit and surrender possession of the premises.” It is found by the court and conceded that the lessee did not, after the fire, quit or *276surrender possession of the premises. It is claimed on the part of the plaintiff, and the court, in effect, held, that the lessee could only relieve himself from the payment of rent by quitting and surrendering possession of the premises immediately after the fire. In support of such ruling counsel for the plaintiff cite certain cases arising under statutes in New York, Ohio, and Minnesota. The New York statute relieved the tenant from the payment of rent after the destruction of the building by the elements, unless otherwise agreed, and gave him the remedy of quitting and surrendering the possession of the premises, but did not, as the lease here provides, expressly stipulate for a suspension of the payment of any rent until the destroyed building should be rebuilt or repaired by the lessor. “It is well settled that in construing a contract all of its terms must be considered.” Mayer v. Goldberg, 116 Wis. 96, 92 N. W. 556, 558. There is nothing ambiguous in that clause of the lease, and there is no reason why force and effect should not be given to it. Id. The clause of the lease differs so broadly from -the provisions of the New York statute as to make the adjudications in that state under that statute inapplicable. They held, in effect, that it was optional with the tenant to surrender possession and terminate the lease in case of such destruction, but that, if be failed to do so, be was liable for rent. Johnson v. Oppenheim, 55 N. Y. 280; Smith v. Kerr, 108 N. Y. 31, 15 N. E. 70; Fleischman v. Toplitz, 134 N. Y. 349, 31 N. E. 1089. Under a statute of Ohio substantially the same as the statute of New York a similar ruling was made. Gay v. Davey, 47 Ohio St. 396, 25 N. E. 425. The same is true in respect to the statute of Minnesota and the adjudications under it. Roach v. Peterson, 47 Minn. 291, 50 N. W. 80. The difference between the clause of the lease in question and the statutes referred to is well illustrated in the case of Kip v. Merwin, 52 N. Y. 542, 544, where the lease contained “a condition that, in case the demised premises are so damaged by *277fire as to be untenantable, the rent shall cease until the same shall be put in good repair,” and it was held that “the terms of the lease did not require that the tenants should abandon their possession to entitle them to a suspension of the rent.” As indicated, we have no right to ignore the express stipulation of the parties in the case at bar. The intention, as gathered from the language they have employed, must be carried into effect. Mayer v. Goldberg, supra. The lease expressly provides that upon such destruction of the building or buildings the lessee should “not be liable or bound to pay rent to the lessor until the same are rebuilt or repaired, or he may thereupon quit and surrender possession of the premises.” This not only gave the lessee the right to quit and surrender possession of the premises, but also relieved him from paying rent to the lessor until the building so destroyed should be rebuilt or repaired. True, there is no agreement on the part of the lessor to rebuild or repair, but there is an agreement that the lessee shall not be bound to pay him rent until he does so. If the lessor fails to rebuild or repair, the loss falls on itself. We have no right to construe away the-provisions of the agreement which the parties made for themselves.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with direction to dismiss the complaint.