Johnson v. Tucker, 136 Wis. 505

Johnson v. Tucker

136 Wis. 505 | Wis. | 1908

BarNes, J.

The appellant seeks a reversal of this judgment on three grounds: (1) Because the relation of landlord and tenant did not exist between the parties to the suit. (2) Because the defendant was evicted from the premises. (3) Because the special verdict was incomplete.

1. The first error assigned is predicated upon the proposition that the plaintiff is a married woman living with her husband and that the house in question belonged to the husband, and, therefore, if rent was due to any one, it was due to him. The testimony showed that the plaintiff, with the consent of the husband, for about fifteen years had been renting the rooms occupied by the defendant, and had been collecting rent all this time without let or hindrance from her husband, making such use thereof as she saw fit. The defendant rented the rooms from the plaintiff and paid her ten months’ rent therefor. During this time the husband of the plaintiff made no claim to the rent, and, though he lived in the same house with the defendant, never talked with him upon the subject of rent in any way, and never took any step that could be construed as an attempted repudiation of his wife’s authority to treat the rented rooms as her own and to do with them what she pleased. There is nothing to show that she was acting as the mere agent of her husband at the time the rooms were rented, or subsequently thereto, and the husband did not claim, and does not now claim, any right to the rent sued for. The sole ground *508upon which the claim is based that the husband was in fact the landlord is his ownership of the property.

It was competent for the defendant to show that he did not rent the property from the plaintiff and that he did rent it from some one else. But this he might not do by showing that the lessor did not own the leased premises. The rule that, under such circumstances as are disclosed here, the tenant cannot question the title of his landlord, is so nearly axiomatic in the law that it is unnecessary to cite authority to support it. There was no competent evidence from which a jury would be warranted in finding that the relation of landlord and tenant did not exist between the parties. This conclusion renders it unnecessary to consider the effect of the failure of the defendant to comply with the provisions of secs. 3619 and 3620, Stats. (1898), if he desired to raise the question of title.

2. As to the existence of most of the acts which constituted the alleged eviction, there was a dispute in testimony, and it was for the jury to determine the existence or nonexistence of such alleged facts. As to the failure of the plaintiff to keep the gas heater in the bath room in a state of repair for a considerable length of time, about which there was no substantial dispute in testimony, this court cannot say as a matter of law that it was of sufficient moment to constitute a constructive eviction. If, instead of submitting to the jury the sufficiency of the details relied on to constitute an eviction, the trial court had held as a matter of law that they were insufficient, we would feel loath to disturb his conclusion in this regard. Young v. Burhans, 80 Wis. 438, 50 N. W. 343; De Witt v. Pierson, 112 Mass. 8; Taylor v. Finnigan, 189 Mass. 568, 513, 16 N. E. 203; Wood, Landl. & T. (2d ed.) sec. 477.

3. The third question in the special verdict is the following: “Was the defendant evicted from the leased premises?” to which the jury answered “No.” Counsel claims that it *509was error to submit tbis question to tbe jury, as it called for a conclusion of law and not of fact, and argues that tbe question should be: “Was tbe gas beater out of repair?” etc. Tbe court instructed tbe jury on tbe law pertaining to constructive eviction. No exception was taken to sucb charge. Tbe question submitted was proper and tbe one now suggested would have been immaterial, as it merely went to evi-dentiary facts, which at best only tended to show eviction and not to conclusively establish it.

By the Court. — Judgment affirmed.