64 Wis. 380 | Wis. | 1885
The material evidence in the case is entirely uncontradicted. It proves that shortly before November 7, 1884, the sheriff levied an execution upon the defendant’s stock of goods, and by virtue thereof duly sold the same to one Steck. Immediately thereafter, William Toung, Sr., the father-in-law of the defendant, bought the goods of Steck, and sold the same to his son, William Young, Jr. The intervention of the Youngs was for the sole benefit of the defendant, pursuant to some arrangement or understanding between them and the defendant that the business should be continued and carried on in the name of Young, Jr., the defendant to receive a stated sum per month out of the profits for his maintenance, and the balance of the proceeds of the business to be applied in payment of the defendant’s debts. The Youngs were to have none of the profits or proceeds of the business to their own use, and never so received any part thereof. All this was upon the condition that the defendant should conduct himself properly, and there is no claim that he did not do so. The goods were not removed from the store by the sheriff or either of the purchasers, and the business was carried on therein as before the seizure, by permission of the defendant. The defendant remained in the store and conducted the business as before, with the exception that the money received in the business was deposited in the name of Young, Jr. It does not satisfactorily appear that the latter had anything to do with the business except to go to the store for a short time daily and sign checks. Such was the situation of affairs when the statutory notice was served, November 26, 1884. The case is barren of evidence tending to show that the defendant ever formally assigned, trans
The foregoing are all the material facts in the case bearing upon the question whether there was a breach of any covenant in the lease. Unless it necessarily results from those facts that the defendant has made default in some one of his covenants or agreements contained in the lease, there is no proof of any such default. His covenant is that without the consent of his landlord he will not assign or otherwise part with the lease, and will not underlet or part with any portion of the leased premises. Certainly he has not assigned or parted with his lease, neither has he formally underlet the leased premises. There is no testimony tending to prove that the defendant has done either of these acts. On the contrary (as before stated), it is affirmatively proved that he has not. Hence, if there has been any breach of covenant, it is becausa the defendant has parted with the leased premises, or some portion thereof. Has he done so? We fail to find any testimony tending to show that he has. He was there managing and controlling the business as he had done before his stock was seized and sold, except that his relatives, with his consent, had placed restrictions upon him respecting the expenditure of money, the proceeds and profits of the business. True, the legal title to the goods was in Young, Jr., but he held the title thereto as a sort of trust created by Young, Sr., for the sole benefit of the defendant. There is no hint in the testimony of any interference by either of the Youngs with his management of the business. He transacted this business in the leased store, and at the same time held the lease thereof unassigned and unimpaired. It seems clear that an action for a trespass to the leased premises would necessarily have •been brought in the name of the defendant, and that he could at any time have lawfully required Young, Jr., to re
It was maintained on behalf of the defendant, that the covenant not to assign the lease, or part with the possessionof the leased premises, being a mere negative covenant, is not within the stipulation giving the lessor the right of ’reentry in case of default in respect to any of the covenants or agreements contained in the lease. This proposition waü argued with much ability by the respective counsel. Having reached the conclusion that there has been no breach’ of that covenant, it is unnecessary to determine the proposition.
The special verdict will now be briefly considered. The jury found that the defendant, without the consent of the plaintiff, suffered ‘William Young, Jr., to be in possession, with the stock of goods, of the leased premises for the purpose of business: This is not an explicit finding that the defendant parted with the possession of any portion of the leased premises. It must be construed and understood with reference to the undisputed facts in the case. So construed^ the finding means only that Young, Jr., had just such possession of the premises as resulted from his interest in the goods and business, and none other. We have already seen that such interest did not operate to divest the defendant-of his lease, or his possession under it of the whole or any part of the leased premises. Hence this is not a sufficient finding that the defendant has broken any covenant or agreement contained in the lease.
The remaining findings are to the effect that Young, Jr., was not in possession as an assistant of the defendant, and' that the latter was not conducting the business as agent of1 Young, Jr., but for his own benefit. It is conclusively
It results from this brief analysis of the special verdict that the facts found therein are insufficient to support a judgment for the plaintiff, unless the first finding be construed to mean that the defendant actually parted with the possession of the leased premises. We have seen that if so construed it is unsupported by any evidence. The plaintiff, therefore, was not entitled to judgment on the special verdict, and it was not error to set the verdict aside, although, had it been allowed to stand, probably it would not have been an obstacle to a judgment for the defendant.
Had the jury found the same facts they did find, and in addition thereto had they found that the defendant did not assign, or part with his lease, and did not underlet or other-, wise part with any portion of the leased premises, the court would construe the first finding to mean only that Young, Jr.., had such possession of the leased premises as resulted from his interest in the goods and business, and none other. So construed, the finding would not conflict with such supposed additional finding, and judgment would go for the defendant upon the verdict, without setting aside any of the findings therein.
In Hutchinson v. C. & N. W. R. Co. 41 Wis. 541, the rule was established, and has since been adhered to, that if the jury fail in a special verdict to find a fact essential to uphold the. judgment recovered, if the undisputed evidence proves such fact, the judgment will not be disturbed because of such omission. It is there said: “ In such a case a finding upon the issue is matter of form rather than substance; for
The evidence showing conclusively that the plaintiff was not entitled to recover, and the special verdict containing no finding of fact which interfered with the rendition of judgment for the defendant, we think the court properly gave judgment in his favor. See Gammon v. Abrams, 53 Wis. 323.
Other questions were argued, but those above determined are conclusive of the case.
By the Court.— Judgment affirmed.