89 Wis. 239 | Wis. | 1895
1. The contention of the defendant’s counsel is that the instrument on which the action is founded is not a lease; that although rent is reserved by it and agreed to be paid by the defendant, and it contains words of present demise, and there is nothing to show that the parties contemplated the execution of any other or further instrument on the subject, still there is no certain time expressed when it shall commence, nor is it made contingent upon the happening of any certain event; and therefore it is said that it is invalid, as a lease, for uncertainty. The general rule is stated to be that no precise words or technical form of language are required to constitute a present demise, and that if there are words showing a present intention that one is to give, and the other to have, possession for a determinate term, a tenancy is created; and that where there are words of present demise the instrument should operate as a lease, and not as an agreement for a lease. 2 Addison, Cont. (Morgan’s ed.), § 677; Chapman v. Bluck, 4 Bing. N. C. 187, 196. Unless some certain beginning or event is referred to by which the period of its commencement may be ascertained, it will be void for uncertainty. Tayl. Landl. & Ten. § 70. There
In the present case the premises are to be held for a term ending February 1,1902, and the owner, the plaintiff, agreed to erect a factory building thereon, and complete it so that it would be ready for occupancy on or before March 1, 1892, according to certain plans and specifications, unless prevented by causes beyond his control, he on his part exercising reasonable care and diligence; reserving an annual rental of $4,300, payable in sums of $358.33 on the 15th of each month, to begin when the building shall be ready for occupancy, the first payment to be made on the 15th day thereafter, and thereafter on the 15th day of each month. It also contains the usual formal stipulations mentioned in the foregoing statement. Ve think that the instrument in question was a - valid lease in prcesenti, for a term to commence in futuro, — that is to say, on the 1st of March, 1892, being the date when it “was agreed the building should be completed ready for occupancy; and there is evidence tending to show that it was so completed at the agreed túne, and possession tendered to the defendant, and thereby the essential element of certainty of the commencement of the term was fully satisfied.
In Thornton v. Payne, 5 Johns. 74, an agreement to let a farm, on condition that an annual rent of $250 should be paid for it on the 1st of April in each year during the term, was made January 7, 1806, for six years from April 1, 1807, and ending April 1,1813, and it was held to be a lease and not an agreement for a lease, and the payment of the $250 was not a condition precedent. It was there said by SrENCEE, J., that “it is a cardinal point in determining whether contracts between parties in relation to letting are leases or agreements for leases, to seek for the intention of the parties from the -whole instrument; ” and that “ in every
The conclusion at which we have arrived is sustained by
2. Tbe question of fact strenuously disputed at tbe trial-was whether tbe building was completed ready for occupancy by March 1, 1892, in accordance with tbe plans and specifications, so far as applicable, and where not applicable whether it was built of proper material and in a reasonably safe and workmanlike manner,— in brief, whether there bad been a substantial compliance with tbe contract on tbe part of tbe plaintiff; and tbe evidence was such as to call for proper instructions to tbe jury on this subject.
Tbe court instructed tbe jury that, as to tbe work which was designated in tbe specifications, tbe question was whether or not there bad been a substantial and full compliance with tbe specifications; and as to tbe walls, in respect to which there were no specifications, tbe test was whether or not they were erected and constructed in a reasonably safe and workmanlike manner, and of reasonably safe and proper material, for tbe known purposes for which tbe building was to be used. And after having directed tbe jury in respect to what effect tbe fact would bave, if they so found it,
The instruction first given to the jury stated the rule of law correctly as to what would be a sufficient performance of the contract on the part of the plaintiff. The subsequent instructions on this subject are repugnant to and contradict-' ory of this rule, and it Avas error to give them, requiring a reversal of the judgment. It does not require argument or the citation of authority to shoAV that the defendant could defend this action on the ground that there had not. been a substantial compliance with the specifications, or that the walls, in respect to which there were no specifications,, had not been erected and constructed in a reasonably safe and workmanlike manner, of reasonably safe and proper material for the known purposes for which the building was to be used, without shoAving that, at the time the premises were tendered to him, either that the building Avas entirely unsafe, or that defects then existing by reason of the plaintiff’s failure to substantially perform his contract, AArhether open or latent, and since developed, in Avhole or in part, had rendered it absolutely vmsafe or in clanger of tumbling down, or that it Avas actually vmsafe. A building in either of these conditions would be untenantable, and, if it merely conformed to the requirements of these instructions, would be, in no just or proper sense, a substantial compliance with the ■obligations of the plaintiff under the contract.
Other points in relation to the admission or rejection of evidence do not require notice, as they may not arise upon another trial. Eor the errors noticed in the instructions of the court to the jury the judgment must be reversed.
By the Cowrt.— The judgment of the, circuit -court is reversed, and the cause remanded for a new trial.