72 Wis. 559 | Wis. | 1888
The premises in question were leased for the term of four months, and that term had not expired when the defendants re-entered and took possession thereof and removed and .improved the hotel. They did so under the alleged stipulation in the lease that the plaintiff, or the plaintiff and Bostrom, should surrender the leased premises to the lessor, the defendant M. S. Frawley, whenever he desired to proceed with the contemplated improvement of the property.
Such stipulation is not a condition, which, upon re-entry by the lessor, detérmines the lease; but a covenant, the-breach of which does not determine the lease, but only gives the lessor a right of action to recover damages for such breach. 1 Tayl. Land. & T. secs. 244, 291; 1 Washb. Real Prop. ch. 10, sec. 3, cl. 8. In the treatise last cited it is said: “So, though one covenants in a lease to surrender the premises upon a certain contingency, it does not give the lessor a right to enter and expel the lessee upon the happening of such contingency, unless there isa right of re-entry therefor reserved in the lease.” See Dennison v. Read, 3 Dana, 586. In the present case it is not claimed' that there was a stipulation in the lease that Frawley might re-enter when he desired to improve the property, but only that in such contingency the lessee or lessees would surrender the leased premises.
Certain legal propositions involved in the case will now be considered, in connection with the acts of the parties and Bostrom in respect to the ‘leased premises, and the instructions given by the court to the jury upon such propositions.
1. The question whether the plaintiff sold her interest in
2. If Bostrom was one of the lessees, and had an interest as such in the lease when the defendants re-entered, and if the alleged agreement was entered into to surrender the lease should the lessor desire to make the contemplated improvements before the expiration of the term, his consent to such re-entry (if he so consented) is a surrender of the: lease, and binds the plaintiff. It may fairly be said that if the lessees stipulated to surrender the lease on the happening of a certain contingency, before the expiration of the term, each lessee was the agent of the other to make thé surrender when the contingency happened. The jury were so instructed.
3. Assuming that Bostrom was one of the lessees and a partner with the plaintiff, and that the* lease was held as partnership property, if there was no stipulation to sur-: render the lease before the expiration of the term on the happening of a contingency, we are of the opinion that, under the circumstances of the case, Bostrom could not bind the-plaintiff by a surrender to which she had not as
The jury were instructed, in effect, that if plaintiff and Bostrom were-copartners in business and held the lease as such, Bostrom could make a valid surrender of the lease which would bind the plaintiff. The instruction is as follows: “If you find that the plaintiff and Bostrom were copartners in the business and held the lease as such copart-ners, and that said Bostrom consented to the acts of the defendants, either by words or by standing by and not objecting, then the plaintiff cannot recover, whatever the terms o.f the original lease might have been.” This instruction omits a'n essential element in the authority of Bostrom to make a valid surrender, to wit, the existence of the stipulation in the lease to'surrender the same on the happening of the contingency mentioned. We regard this instruction as erroneous. The error is material, because it may be that the instruction controlled the verdict. It is therefore fatal to the judgment.
4. If Bostrom was not a lessee or interested in the lease,
5. If the defendants, under the rules above stated, were justified in re-entering and taking possession of the premises, the plaintiff can recover no damages for loss of a portion of the term, or for injury to her business; but if the defendants destroyed her property, or did any unnecessary damage thereto, she may recover in this action for such destruction or injury. In Aschermann v. Philip Best Brewing Co. 45 Wis. 262, this principle is affirmed.
6. Numerous exceptions were taken during the trial to the rulings of the court on objections to testimony. We do not deem it necessary to determine these exceptions on this appeal. Having settled the principles of law which must govern the case, we think the learned circuit judge, on a retrial of the cause, will have no difficulty in confining the testimony within legal limits, without the assistance of this court.
By the Court.— The judgment of the circuit court is ro-rersed, and the cause remanded for a new trial.