183 Wis. 25 | Wis. | 1924
There was some conflict in the testimony as to whether the oral agreement was made on Sunday, and-* the owner of the land claimed it was void for that reason and also under the statute of- frauds. • His counsel made some effort to show that defendant had violated the oral agreement, but, as already stated, testimony on that subject was ruled out on the objection of defendant’s counsel, so that, although the two actions were consolidated, the sole issue .tried was that of unlawful detainer.
Clearly the oral agreement for leasing the land for five years, if such agreement was made, was invalid under the statute of frauds, sec. 2302, Stats.
Each party claims that the failure, to1 have any written agreement was the fault of the other. On cross-examination the owner testified that in many respects the terms of the oral agreement were the same as those in the unsigned writing, but that the writing contained other terms; and it was not established that the parties had- accepted .it. The defendant had the opportunity to offer proof that the real agreement was reduced to writing but did not choose to do so, and no testimony was given on his behalf except that the written instrument was offered and received in evidence.
It is argued by defendant’s counsel that the summary remedy of unlawful detainer does not, apply unless the. relation of landlord and tenant exists. This is the rule declared in several decisions of this court. Hunter v. Maanum, 78 Wis. 656, 48 N. W. 51; Carter v. Van Dorn, 36 Wis. 289.
It is also contended that there was. a contract between the parties which lyas in the nature of a joint adventure, and not one between landlord and tenant. This claim depends largely on the theory that the written pnsigned, instrument was the contract. But it is clear that according to the evi
What might have been the result of the consolidated actions if .defendant had offered evidence to establish the claim that there was a contract in the nature of a joint adventure we are in no situation to decide. About all that was established by the evidence was that defendant entered into possession with some verbal understanding that he should remain in possession for five years, but the other terms of their verbal understanding were left in uncertainty.
On this question whether the contract was one of joint adventure,, counsel for defendant cite the following cases: Wagner v. Buttles, 151 Wis. 668, 139 N. W. 425; James v. James, 151 Wis. 78, 137 N. W. 1094; Strain v. Gardner, 61 Wis. 174, 21 N. W. 35; Foley v. Southwestern Land Co. 94 Wis. 329, 68 N. W. 994; Rowlands v. Voechting, 115 Wis. 352, 91 N. W. 990. It was held in only one of these cases, James v. James, that the contract was one of joint adventure.
In view of the meager testimony, and the authorities, we cannot hold that there was any contract of joint adventure, but conclude that the relation of landlord and tenant was created. The question arises as to the nature of the tenancy.
The tenancy was not. created by the void contract, but was implied by the law from the occupancy of the premises and the conduct of the parties. Under the English law as adopted in some states the tenancy in the beginning was one at will. Koplits v. Gustavus, 48 Wis. 48, 3 N. W. 754. But the defendant entered into possession, remained for more than a year, and made some division of the crops, although in a manner not satisfactory to the plaintiff. It would have been manifestly unjust to expel him in the middle of a cropping season at a time when he could not receive the fruit of his labor for the year.
Under such conditions the rule seems to be that after the tenant has entered under an invalid lease and has paid rent or its equivalent for a year or more, he is to be regarded
It is urged by counsel for defendant that the case is ruled by Booher v. Slathar, 167 Wis. 196, 167 N. W. 261. In that case there was an oral, invalid contract for the sharing of crops, with the intention, not executed, of having a written contract. The tenant claimed to have an option to purchase, and had done from 300 to 400 rods of tiling. Under the circumstances the court held that under sec. 2305, Stats., if it should appear that a definite agreement could be proved that the tenant was required to do the work respecting the improvement of the farm and that he entered into such agreement and performed to a substantial extent what was so required and that the repudiation of the contract would work inequitably, it might present a situation authorizing a court of equity to declare the agreement valid and enforceable so far as necessary to protect defendant’s substantial rights. In the case before us there is an entire absence of any such proof as to bring it within the case referred to.
It is argued by defendant’s counsel that the notice to quit was insufficient because, as claimed, the tenant entered into possession October 4th, and the tenancy began on that day, and that a tenancy when terminated by notice must expire on the first day of the year on which the tenancy began. In the pleading of both parties it was alleged that the tenancy was to begin on October 1st. Although defendant did not take full possession until October. 4th, he had brought on the farm before that his cattle and horses and machinery. The notice to quit was given in the preceding July. Under the statute, sec. 2187, a notice of thirty days was sufficient.
By the Cowrt. — -Judgment reversed, and the cause is remanded to the county court with direction to enter judgment that plaintiff have restitution of the premises.
