Bergland v. Frawley

| Wis. | Nov 8, 1888

Lyon, J.

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" court="Ky. Ct. App." date_filed="1835-11-12" href="https://app.midpage.ai/document/dennison-v-read-7380176?utm_source=webapp" opinion_id="7380176">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 the lease and business, and her personal property on the leased premises, to Bostrom before the defendants re-entered and took possession of said premises, was litigated on the trial, and the testimony relating thereto was conflicting. The court submitted the question to the jury, with an instruction that if she thus sold the lease and property she could not recover in this action. The instruction is correct; for certainly, if the plaintiff was not the owner of the lease, or some interest therein, or the property alleged to have been destroyed or injured by the defendants, she has no cause of action against them on account thereof, even though their conduct was tortious. Probably the jury resolved the question in the negative, else they would not have found that the plaintiff and Bostrom were partners in the business prosecuted upon the leased premises during the fall of 1883.

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 assented., The plaintiff had not loft the country. She was reasonably accessible, anjd should have been consulted. Under these circumstances, we do not think Bostrom was her agent to make a surrender of the lease which would bind her. In other words, we think it was not within the real or apparent scope of his authority as a co-lessee or partner to do so. The (¡ase seems to be fairly within the reason of the rule, established and recognized by this court in several cases, to the effect that one of two partners cannot make a valid voluntary assignment of the firm assets, for the benefit of creditors, without the concurrence of the other partner, if the latter is reasonably accessible and can be consulted. Brooks v. Sullivan, 32 Wis. 444" court="Wis." date_filed="1873-01-15" href="https://app.midpage.ai/document/brooks-v-sullivan-6601235?utm_source=webapp" opinion_id="6601235">32 Wis. 444; Rumery v. McCulloch, 54 Wis. 565" court="Wis." date_filed="1882-04-05" href="https://app.midpage.ai/document/rumery-v-mcculloch-6603751?utm_source=webapp" opinion_id="6603751">54 Wis. 565; Coleman v. Darling, 66 Wis. 158; Farwell v. Webster, 71 Wis. 485" court="Wis." date_filed="1888-04-17" href="https://app.midpage.ai/document/farwell-v-webster-6606106?utm_source=webapp" opinion_id="6606106">71 Wis. 485. Surely the surrender of this lease was as destructive to the partnership business as were the assignments in the above cases. |

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, although a partner with the. plaintiff in the business pursued on the leased premises, he had no authority, real or apparent, to make a valid surrender of the lease. If Bos-trom was neither such lessee nor partner, it is very manifest that he could not bind the plaintiff by such surrender,

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" court="Wis." date_filed="1878-08-15" href="https://app.midpage.ai/document/aschermann-v-philip-best-brewing-co-6602645?utm_source=webapp" opinion_id="6602645">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.