81 Wis. 182 | Wis. | 1892
I. The defendant maintains that under the agreement of renewal contained in the lease of 1885, to the effect that the renewed lease shall be subject to all the con
The lease of 1885 (as did all the preceding leases) contains special provisions for ascertaining the annual rental of the leased lot on the renewal of the lease at its expiration. These provisions seem to cover the whole subject of the amount of rent to be reserved in the renewed lease. Such amount is not affected by the amount thereof reserved in the old lease, but is ascertained upon an entirely new and independent basis. In each lease the deduction for prompt payment from the agreed annual rental was arbitrarily fixed at from one sixth to one third of such rental. These circumstances tend strongly to show that the stipulation that the renewed lease should be subject to all the conditions of the expiring lease was not intended to include, and does not include, any conditions therein concerning the amount of annual rent or deductions therefrom for prompt payment. ¥e are inclined to the opinion that such is the true- construction of the covenant for renewal in the lease of 1885 and in the preceding leases.
Our conclusion is that defendant is in default for not accepting and executing the lease tendered, or for not joining in proceedings for another appraisal when requested to do so by plaintiff.
II. The learned counsel for defendant, in his very able and ingenious argument, maintained that, admitting the defendant is in default for the reasons just stated, still he is the tenant of the plaintiff, either at will or by sufferance;
The ‘lease of 1885 expired May 1, 1890. The parties immediately set about obtaining the necessary data for a renewal thereof. Such data, to wit, the appraisal of the lot, was obtained, which, although defective, was approved and adopted by both parties. Then the defendant refused to take a lease, although one in proper form was tendered to him, and also refused to join in obtaining a new appraisal. He thus put himself in default. True, the defendant remained in possession of the lot pending the attempt to agree on a new lease thereof, but he was not, in any correct sense of the term, a tenant of plaintiff, either at will or by sufferance. The plaintiff expressly repudiated any such relation by refusing to accept rent after the termination of the lease of 1885. The doctrine that a tenancy by sufferance necessarily arises when a man comes into possession of lands lawfully, but holds over wrongfully after the determination of his interest therein, has been qualified in this state and elsewhere in an important particular. It was held by this court in Meno v. Hoeffel, 46 Wis. 282, that, in order to create a tenancy by sufferance in favor of a tenant holding over after the expiration of his term, the consent of the landlord, either express or implied, to the continuance of the tenancy, is essential. The opinion in that case by the late Mr. Justice Taylor contains a statement of the reasons for such qualification, which 'need not be repeated here. It is quite true that the ruling in that case narrows the distinction which has sometimes been supposed to exist between tenancies at will and by sufferance. But since the adoption of our statutes on the subject of terminating such tenancies (sec. 2183, R. S.), which puts them on precisely the same footing, it is not unjust or unreasonable thus to narrow the supposed distinction between them; and
In this case the possession of the defendant, after the expiration of the lease of 1885, must be referred to the renewal lease which the parties intended to execute, and when such lease failed through the default of defendant such possession became wrongful from the expiration of the former lease. There is nothing in the case showing that plaintiff gave either express or implied consent to such occupancy, independently of the proposed renewal-lease. It would be most unreasonable and unjust, after defendant’s default, to charge plaintiff with the obligations of a landlord, and confer upon the defendant the rights of a tenant, merely because plaintiff allowed defendant to remain in possession of the lot after the lease of 1885 had terminated, pending a settlement of the terms and the execution of the new lease, which failed through defendant’s default alone. Our conclusion is that after such default no tenancy existed, either at will or by sufferance; and hence the defendant was not entitled to the statutory notice required to terminate a tenancy.
By the Court.— The judgment of the circuit court is affirmed.