Auer v. Hoffmann

132 Wis. 620 | Wis. | 1907

Siebeckee, J.

The case presents no facts showing a modification of the lease prior to the letter of March 9, 1905. Appellant claims in substance that the transaction between the parties whereby plaintiff credited defendant with $25 on the rent did not result in modifying the lease, hut that, taken in connection with the letter of March 9, 1905, it tended to support the defendant in his contention- that plaintiff treated the lease as so modified that it terminated on April 30, 1905. This brings us to. the controverted issue in the case, namely, whether under the circumstances shown there was a cancellation of the lease by the letters of March 9 and March 16, 1905. The effect of these letters must be determined in view of the subsisting relation of the parties under the written lease which was then in force. By the terms of the lease the relation of landlord and tenant was to continue between them until April 30, 1906. Erom this defendant must be presumed to have understood and to have known at the time that the lease did not expire until April 30, 1906. In view of such knowledge, the contents of plaintiff’s letter of March 9, 1905, must have clearly indicated to him that plaintiff was in error as to when the lease did expire. The contents of the letter show clearly that plaintiff did not thereby intend to terminate or offer to terminate the lease or in any way change or modify the subsisting contract. The letter plainly indicates that the plaintiff erroneously believed the lease expired on April 30th, following, and the defendant, therefore, was not warranted in treating it as an offer to modify the lease. In view of these circumstances there is no valid basis for defendant’s claim that the lease was so modified by consent of the parties that it expired April 30, 1905.

This also negatives the contention that plaintiff should not be permitted to enforce his claim because defendant, in reliance on such cancellation of the lease, vacated the premises and became obligated for the rent of another building after April 30,1905. It does not appear that between March 9 and March 16, 1905, defendant had become obligated for the rent of another building. The facts show that he was released from whatever obligation he had assumed before the 16th of March, the date of his letter to plaintiff declaring he would vacate the premises. Before defendant contracted for the lease of the premises of which he- took possession after leaving those held by him under the lease in question, plaintiff had informed him that his former letter of March 9, 1905, was erroneous, and that the lease did not expire until April 30, 1906.

It is urged that there is no proof tending to show that defendant received this letter. The record shows that the court and the defendant’s counsel, in propounding questions to him, assumed that he had received this letter of plaintiff’s, before March 21, 1905, when he wrote plaintiff on the subr ject, and in his answers to such questions, he assented to the correctness of this assumption. Thereafter he had no right to act on the assumption that the lease had been canceled.

We find no error in the record, and the judgment must stand.

By the Court. — Judgment affirmed.