Neelen v. Wells Building Co.

173 Wis. 322 | Wis. | 1921

RoseNBERRy, J.

It is the contention of the appellant that the occupancy of the premises by the son, Wilmot P. Miller, subsequent to the death of his father, and payment of rent by him, terminated the tenancy as of that date, and that such occupancy operated to create a new tenancy, which was at least a constructive eviction of the administratrix of the estate as a tenant. That the son, Wilmot P. Miller, did occupy the leased premises and remained in the occupancy thereof until the termination of the lease is established without dispute. There being no finding of the trial court as to the nature of the occupancy, it is the contention of appellant that the son occupied the premises for his own purposes; that it not af>pearing that the son was the assignee or subtenant of the administratrix or as agent of the ad-ministratrix, he must, as a matter of law, have occupied them as the tenant of the company with the consequences stated. The findings of the trial court show that the son entered the premises shortly prior to the death of his father; that the furniture and professional equipment of the deceased, Wilmot F. Miller, remained upon the premises until the termination of the lease. The vital question is whether or not there was a reletting of the premises. If there was, there is no doubt that such reletting, in the absence of qualifying circumstances, would operate to terminate the lease. The situation that existed shortly prior to the death of the lessee continued practically unchanged to the time of the termination of the lease, with the exception of the death of the lessee and the payment of some instalments of rent by the son. The trial court evidently concluded that there was no reletting either by express agreement or otherwise, and we think the evidence and findings fully justify the trial court in that conclusion. The' mere acceptance of rent paid by the Ibn did not operate to discharge the lessee or his estate from liability under the terms of the lease. Lovejoy v. McCarty, 94 Wis. 341, 68 N. W. 1003. In the cases cited to our attention by the appellant there was some act by the landlord other than the mere acceptance of rent from a third person. Here'there was no new' lease for the whole or any part of the term embraced in the lease in question, consequently there could be no surrender in law, as in Bailey v. Wells, 8 Wis. 141. The filing of a claim by the lessor for the amount of the rent due for the entire period was notice to the administratrix that the lessor elected to hold the estate for the rent for the entire period and not to terminate it as it might have done under the provisions of the lease.

The appellant further argues that the lease is void for lack of mutuality as to consideration. The lease contained a clause which provided that the lessor should not be liable for any loss or damage sustained by the lessee by reason of any act or neglect of any contractor, employee, agent, or servant of said lessor or other person, and that any such loss or damage should not abate or reduce the rent of the premises, and other provisions that the landlord should not be liable for failure to repair and for defects, etc., the contention of the appellant being that unless the lessee receives an assurance of peace and enjoyment he receives nothing of value. If the contention here is that by reason of the limitations placed by the terms of the lease upon the liability of the lessor there was not a sufficient consideration, it is certainly not a sound one. If the lessee chose to accept the premises under the conditions specified in the lease, there was ample consideration moving from the lessor to support the contract. Whether or not a consideration is adequate is a matter exclusively for the decision of the parties. 1 Williston, Contracts, § 140.

It is the further contention of the appellant that the lessor did not use due diligence to collect the rent from Wilmot P. Miller. If there was no reletting and no lease ■ existed between Wilmot P. Miller and the lessor, there was-no obligation on the part of the lessor as to collection of rent from him. If Wilmot P. Miller was in possession of the premises under and by virtue or with the consent or knowledge of the lessee, it was the duty of the lessee to look out for the collection of rent from the person who was in actual occupation. The lessor had elected by filing its claim to hold the estate of the deceased lessee. It is not apparent, therefore, how the lessor can be held negligent by reason of its failure to collect the rent from a third party who was under no obligation to it to pay.

By the Court. — Judgment affirmed.