Bailie v. Rodway

27 Wis. 172 | Wis. | 1870

Cole, J.

The purchaser of the demised premises was bound to take notice of the rights of the lessee und.er the lease. The plaintiff was in possession of the premises, and the defendant admits, in his affidavit used on the motion to dissolve the injunction, that he had notice of the rights of the plaintiff as they were defined and reserved in the lease. It seems to us, therefore, that there is no sufficient ground for saying that the defendant was a stranger to the covenants of the original lease, and is not bound by them. Adopting, then, this view of the case, the question arises, Was the injunction properly dissolved?

The lease gave the defendant the option to take and pay for the improvements, or renew the lease at an annual rent of ten per cent, upon the appraised value of the premises, without regard to the improvements. In case he elected to take and pay for the improvements, he was to give the lessee three months’ notice of such election, previous to the expiration of the term. He did not give any such notice, but did, on the 25th of April, cause to be served upon the plaintiff a notice to the effect that it was necessary men should be chosen to appraise the value of the real estate as a basis of a new lease (should the plaintiff elect to take one), and that he named on his part Mr. Charles Cain. This was certainly a sufficient indication on his part that he elected to give a new lease. It is argued by the counsel for the plaintiff that the defendant.did not, in this notice, offer to give a new lease, but waived his option, and expressly gave the plaintiff the election whether he would take a new lease or not. But while it may be true that the defendant did not in so many words, in this notice, offer to give a new lease, there cannot be any possible doubt of his intention upon that point. He indicated in the clearest manner his election to renew the lease according to its stipulations, and selected a person to act on his behalf in appraising the value of the premises. This was manifestly all he could do in fulfilling his covenant, and it would remain with the plaintiff to determine whether he would have the lease renewed according to the original conditions, or abandon the premises altogether. This is the extent of his rights when the lessor elects to renew the lease. He must in that case accept the renewal upon the stipulated conditions, or yield the possession of the premises. The defendant, then, has kept and performed his covenants, by notifying the plaintiff of his election to renew the lease, and by appointing a person to act with one appointed by the plaintiff and a third chosen by the two, in making an appraisal of the real estate as the basis of a new lease. But the plaintiff refuses to appoint on his part, and is in default. And this constitutes the fundamental distinction between this case and that of Hopkins v. Gilman, 22 Wis. 476. There the lessor refused to perform his covenant, either by renewing the lease or by taking and paying for the improvements; while here it is the lessee who refuses to perform the agreement. And while refusing to keep his covenants, he appeals to a court of equity to order the improvements sold for his benefit. Upon what principle a court of equity would be justified in interfering, upon the facts disclosed, we do not readily understand. The defendant has exercised his option, and elected to renew the lease. The plaintiff has declined to accept such renewal. Upon what ground, then, can he ask a court of equity to compel the defendant to take the improvements and pay for them, or order them to be sold ? We are very clearly of the opinion that he is not entitled to any such relief.

It follows from these views that the order of the county court vacating the injunction, must be affirmed.

By the Court. — Order affirmed.