Meno v. Hœffel

46 Wis. 282 | Wis. | 1879

Taylor, J.

Under the decisions of this court, the objection to the charge specified in the motion for a new trial, is entirely too general and vague to be of any avail to the appellant upon an appeal to this court. Nisbet v. Gill, 38 Wis., 657. In this case it is held that, in order to make an exception to the charge, which is made a ground of motion for a new trial, of any avail in this court, when no exception was taken on the trial or in the exceptions filed, thei particular part of the charge which is objected to and made a ground for asking for a new trial, must be pointed out in such motion, and such motion must be made at the same term at which the trial took place; otherwise it will be too late to ask a new trial on the ground of improper instructions given to the jury, when no exceptions were taken to the same on the trial, and none filed before the expiration of such term. It is unnecessary to cite the authorities in this court, to show that a general exception to instructions given to the jury cannot avail the party on appeal, when any of the instructions given are proper and legitimate. In this case there is no pretense that all the instructions given are improper or erroneous. The case must be determined, therefore, on this appeal, as though no exceptions had been taken to the charge, either upon the trial or on the motion for a new trial.

The counsel for the appellant insists, that, notwithstanding the want of a motion for a nonsuit and of any exceptions to tbe instructions to the jury, this court should reverse the judgment, because the undisputed evidence (a3 he claims) shows that the defendant, if not a tenant for a year, was the tenant of the plaintiff either at will or sufferance, and there is no evidence that such tenancy had been terminated by a proper notice at the time this action was commenced. We are of the opinion that the evidence does not clearly show such tenancy. Neither party, on the trial, claimed such to be the fact. The plaintiff claimed that there was a tenancy for one month, which terminated on the 15th of June, 1877; and the appellant claimed that there was a tenancy for one year, commencing on the 15th of April, 1877; and nowhere in the record is the question raised that there was a tenancy at will or sufferance.

If the learned counsel claims that a tenancy at will or sufferance was created, simply because the appellant held over and refused to surrender possession after the 15th of June, when it is claimed his term expired, we cannot agree that such claim is well founded. In order to create a tenancy at will or sufferance, in favor of a tenant holding over after the expiration of his term, so as to bar the landlord of his proceedings under sec. 12 of ch. 151, there must be some evidence that such holding over is with the assent of the landlord, and that the landlord either expressly or impliedly admits the continuance of the relation of landlord and tenant after the expiration of such term. In other words, the tenant cannot, by the mere fact of holding over and refusing to surrender the possession, create a tenancy either at will or sufferance in himself, without the consent of his landlord, so as to bar proceedings under the statute above cited. This construction was given to a like statutory provision by the supreme court of New York in the case of Rowan v. Lytle, 11 Wend., 616. If we were compelled to give the statute the construction contended for by the learned counsel for the appellant, it would be quite difficult, if not impossible, for a landlord to avail himself of the remedy provided in sec. 12, ch. 151, R. S. 1858. If tbe tenant, by simply bold-ing over after tbe expiration of his term, becomes a tenant at sufferance, requiring tbe thirty days’ notice to quit, and tbe notice to quit be given, and tbe landlord delayed in tbe commencement of bis proceedings for a day after tbe thirty days expired, a tenancy at sufferance would, according to tbe claim of tbe learned counsel, again exist in favor of the tenant, which must again be terminated by another thirty days’ notice, and so ad infinitum. The injustice, if not absurdity, of this claim on behalf of tbe tenant, as to the construction to be given to sec. 2, ch. 91, R. S. 1858, as bearing upon the right of the landlord to proceed to recover the possession of leased premises, under the provisions of sec. 12, ch. 151, is fully demonstrated in the case of Rowan v. Lytle, supra.

The other points made in the case! arise out of the facts proved.) The issue made between the parties as to the facts was, whether the lease terminated upon the 15th of June, 1877, or whether it terminated on the 15th of April, 1878.) This question was fairly submitted to the jury by the circuit judge in his charge, and the jury have found in favor of the plaintiff. After a careful consideration of the evidence as it appeal’s in the record, we are unable to say that the verdict is not supported by the evidence. There certainly is not such a clear preponderance of evidence against the verdict, as would justify this court in reversing the judgment, after the learned circuit judge has refused to grant a new trial, on the ground that the verdict was against the evidence. We are the better satisfied to sustain the verdict in this case for the reason that the appellant himself claims that there was no contract for leasing the premises at all, unless there was a lease for a year from the 15 th of April, 1877. He swears that he refused to lease the premises, unless the improvements were made which he required should be made, and, if they were made, he was to have the premises for a year at $120. If the question were simply whether there was a leasing for a year, there would be abundance of evidence to sustain a verdict that there was not. There is, perhaps, less evidence to show that there was a lease for only one month, which terminated June 15;; there is, however, some evidence to sustain the verdict, upon that question.',, But it appears from the charge of the court ¡that it was conceded, for the purposes of the trial, that it was immaterial to the defendant, in case he failed to establish a lease for a year, whether the letting was by the month, or whether it was for a single month which expired on the 15th of June; the learned circuit judge having charged the jury, that, if they found “ that the agreement was that the defendant should only take the premises by the month,1 and that the month ¡expired on the 15th of June, and that/the rent was not fully paid to that time, you will have to return a verdict for the plaintiff. .... In fact, the defendant’s counsel concedes that if the premises were leased only by the month, and not by the year, the plaintiff would be entitled to recover.” No exception having been taken to this instruction, it is too late for the appellant to insist that such instruction was erroneous, and that he should have instructed the jury that, in order to find for the plaintiff, they must find that there was a letting for a single month, which expired on that day.

The counsel for the appellant further insists, that the judgment should be reversed because there is no evidence that the demand in writing required by sec. 12 of ch. 151, R. S. 1858, was ever made upon the appellant before the commencement of the action. Upon this point, the learned circuit judge instructed the jury as follows: “ The demand and notice to be given before the commencement of this action, were given, as the undisputed evidence shows.” There was no objection to this instruction, and it would seem that it is too late to take an exception in this court that there was no evidence to support such instruction. Such instruction having been given with the consent of the appellant, he should perhaps be deemed to have admitted, for the purposes of that action, that such notice had been given, even in the absence of any evidence appearing in the record to sustain the charge. Nut the record in this case shows that the plaintiff offered in evidence a written demand of the premises, which was received in evidence without objection on the part of the appellant, and which is conceded to be sufficiently formal; but it is objected that there was no evidence that the same was ever served. It appears from the record, that, at the time the same was offered in evidence, there was an affidavit indorsed on the back of the same, showing that it was served on the appellant on the 2d day of July, 1877.

From the fact that there was no objection made to the offer of the written demand in evidence, and that there was no objection made to the instruction of the court to the jury, “that the demand and notice was given, as the undisputed evidence showed,” it must be held by this court that any objection which might have been made to the proof of service of such demand was waived by the appellant.

Upon a careful consideration of the whole record, we are of the opinion that there were no errors committed on the trial in the court below, or in refusing to grant a new trial, which would justify this court in reversing the judgment of the circuit court.

By the Cov/rt. — The judgment of the circuit court is affirmed.