Katz v. Miller

148 Wis. 63 | Wis. | 1912

Siebecker, J.

Tbe court found that tbe trustees, Eramb G. Bigelow and Julia L. Chaffee, waived tbe breach of tbe covenant in tbe lease'against assignment without tbe written consent of tbe lessors. It appears that tbe premises in question were duly assigned to Bigelow and Chaffee as testamentary trustees, pursuant to tbe will of Edward H. Brodhead, deceased, upon tbe trust to pay out of tbe income thereof tbe expenses of tbe administration of tbe trust and to divide tbe remainder as directed by tbe will. Tbe court found that they duly qualified and acted as such trustees until July 7, 1905, and that Bigelow bad charge of tbe management of tbe affairs of tbe trust. Upon tbe evidence adduced tbe court also found that Chaffee, as trustee, intrusted tbe entire management of tbe trust to Bigelow, and tbat witb ber consent be acted for ber in all matters in managing and administering tbe affairs of sucb trust. Tbis fact is assailed by tbe present trustee, Mr. Miller, tbe appellant, upon tbe ground tbat tbe evidence does not sustain tbe court’s finding on tbis issue in tbe case. Tbe evidence of Bigelow is tbat sbe authorized bim to manage, control, and handle tbe property and to do whatever was required to discharge tbe duties of the trustees in tbis regard. Tbe evidence fails to show tbat Miss Chaffee took any active part in tbe management of the property, but it shows tbat in tbe control and management of this property Bigelow practically did everything required to be done to discharge tbe obligations imposed by tbe trust. It is averred tbat tbis does not constitute proof authorizing Bigelow to act for Miss Chaf-fee as sucb trustee, because bis asserted authority cannot be established by sucb declarations. We do not regard bis statements as irrelevant to tbe inquiry; they bear on tbe question of bis authority to act for ber, and should be considered in connection witb tbe other facts and circumstances of tbe case. It is undisputed tbat be as trustee did tbe negotiating for tbis lease; tbat be dealt witb tbe plaintiff concerning tbe assignment thereof to tbe plaintiff, and conducted all of tbe transactions, including tbe reception of tbe rents due under tbe lease, practically as sole trustee, for a period of over a year, and tbat Miss Chaffee at no time throughout this time appeared to take part in or objected to tbis method of conducting tbe business in which she was a co-trustee. Her conduct respecting tbe matter is persuasive as tending to show tbat sbe did intrust tbe entire management of tbe trust and tbe control and handling of tbe trust property to ber co-trustee, Bigelow, and tends to support tbe evidence of Bigelow tbat sbe conferred full authority on bim to act for and represent ber in all these respects. Tbe acts of Bigelow must be held to have bad ber approval and assent and to be binding on them as trustees in the transactions between them and the plaintiff concerning this lease and the occupancy and use of the trust property.

The lease, as stated, contained a covenant against assignment thereof without the written consent of the lessors. The court found that no such consent was obtained when it was assigned to the plaintiff, but held that this breach was waived by the lessors by Bigelow’s reception of the rent with full knowledge of such assignment. The facts are without dispute that he knew of and orally assented to the assignment and for one year accepted and collected the rent accruing thereon from the plaintiff. Under the circumstances the acceptance of the rents was a waiver by the lessors of the breach of the covenant against assignment. Gomber v. Hackett, 6 Wis. 323; Jolly v. Single, 16 Wis. 280; Palmer v. City L. Co. 98 Wis. 33, 13 N. W. 559; O’Keefe v. Kennedy, 3 Cush. (57 Mass.) 325.

The covenant against subletting was breached, but this also was fully known to the trustees 'when they accepted under the lease rent which accrued after the breach. Such acceptance is a waiver of such prior breaches. It appears, however, that Mr. Miller, as trustee, from the 1st of February, 1909, to the commencement of this action, refused to accept any rent accruing under the lease, and claimed that he had no knowledge of the breach of the covenant and that he had not consented thereto nor to the subletting of the premises by the plaintiff to his various tenants after the payment of the last instalment of rent prior to February 1, 1909, and that he had not waived these breaches of the lease. The waiver of the breach against assignment by the acting trustees, before Mr. Miller’s appointment, operated to discharge the forfeiture and amounted to an election to continue the lease in force with the plaintiff as lessee of the premises. This became binding on all of the parties thereto, and Mr. Miller, who succeeded to the trusteeship, has no cause for declaring the lease forfeited on. account thereof. 1 McAdam, Landl. & T. § 192.

Mr. Miller, however, insists that the underletting of the ground floor in May, 1909, was a breach and justifies a reentry by the defendants. This claim' is based on the ground that the covenant against underletting is continuous, and hence that the.former waivers of its breach discharged only these particular breaches, and that he can insist upon the subsequent forfeitures. As stated in the statement of facts, plaintiff submitted his plans for changes in the building, to' fit it for use as a store and offices instead of the use specified in the lease, and obtained the assent of Bigelow thereto both before and after his purchase of the lease. It was understood that the proposed changes were to be made for the purpose of enabling the plaintiff to sublet the building in parts as stores and offices, and to that end plaintiff expended upwards of $5,000. He thereafter, to the knowledge of the trustees, devoted the building to such uses, by underletting it from the beginning of the term to February, 1909, when Miller for the first time insisted that such underletting avoided the lease. It is clear that the plaintiff was induced to incur this large expenditure for the purpose of underletting the building, as proposed, throughout the term of the lease, and that the acting trustees, who had full control of the premises, fully understood this and assented thereto, and that up to February 1, 1909, with full knowledge thereof, they acquiesced in plaintiff’s use of the premises. To permit the lessors to re-enter for underletting would, under these circumstances, operate to do such an injustice to the plaintiff as equity will not tolerate. The facts and circumstances present a case showing that the plaintiff was induced through the acts of the lessors to expend large sums of money and to change his position to his prejudice, by accepting an assignment of the lease and thereby assuming all of its obligations, upon the understanding that he could underlet the premises throughout tbe term in tbe maimer be bas done. Tbis establishes an estoppel witbin tbe rule of tbe following eases wbieb equity will enforce against tbe lessors to protect tbe rights of tbe plaintiff: Benavides v. Hunt, 79 Tex. 383, 391; Carpenter v. Wilson, 100 Md. 13, 59 Atl. 186; Knoepher v. Redel, 116 Mo. App. 62, 92 S. W. 171; The "Elevator Case," 17 Fed. 200; 1 McAdam, Landl. & T. § 194.

Tbe right to dismiss tbe appeal upon tbe ground that Mr. Miller, as trustee, on October 31, 1911, gave notice of tbe termination of tbe tenancy under tbe provisions of the lease, .thus recognizing it as a subsisting and operating- contract and hence leaving nothing to adjudicate in this action, we do not regard as well founded under tbe stipulation of tbe parties to tbe action. Tbe parties evidently intended by this stipulation to preserve to each tbe right to prosecute tbe action to a final determination upon tbe issues presented, and that any act of either party respecting other rights arising under the lease was not to affect tbe right of prosecuting tbis action to a final judgment. Tbe motion must therefore be denied.

By the Court. — The judgment appealed from is affirmed.