Ratcliff v. Aspros

35 N.W.2d 217 | Wis. | 1948

Action for unlawful detainer commenced in the small claims court for Dane county, March 1, 1948, by H. H. Ratcliff, plaintiff, against Louis Aspros, Nick Christakos, as successors to Louis Aspros, Nick Christakos, Melvin J. Mielke, copartners doing business as the Square Sweet Shop, defendants. From a judgment for the plaintiff, defendants appealed to the circuit court, where the case was tried to the court and a jury. From a judgment entered August 6, 1948, dismissing plaintiff's complaint and adjudging that the defendants are in lawful possession of the premises involved, plaintiff appeals.

On November 12, 1942, the plaintiff, who was and is the owner of the business property at 18 East Mifflin street, Madison, Wisconsin, entered into a written agreement with Louis Aspros, Nick Christakos, and Melvin Mielke, copartners doing business as Square Sweet Shop, for a period of five years from and after March 1, 1943, at a rental and upon terms set out in the agreement. The lease contained the following paragraph:

"11. The landlord in consideration of the rentals herein agreed to be paid, hereby gives to the tenant an option for an extension of this lease for a period of five years from February 28, 1948, at rental and terms to be mutually agreed upon between the parties not less than one hundred twenty days in advance of the expiration of this lease."

During the term Aspros and Christakos bought out the interest of Mielke and continued as partners doing business as Square Sweet Shop. There were negotiations between the parties for an extension of the tease prior to its expiration, but no agreement was reached. Appellant seeks a reversal of the judgment of the circuit court for the following reasons: (1) The option provision in the lease is too indefinite and uncertain to be enforced and is void; (2) respondents are not the partners to which any option was given; and (3) the court erred in refusing to submit a special verdict to the jury as requested by the plaintiff.

The law in Wisconsin as to the construction of a covenant to renew a lease is well settled. In the case of Kollock v. Scribner (1897), 98 Wis. 104, 109, 73 N.W. 776, the lease was for a term of years "with the privilege of a renewal." The court there held that leases containing such a general promise to renew provide, in effect, an agreement to renew upon the same terms and conditions stated in the original lease except as to the condition to renew. The general rule laid down in that case follows:

"When the agreement for a renewal contains language other than that appropriate to a general promise, so that by resort to the settled rules for construction the language of the covenant to renew and conditions of the renewal cannot be made certain, then such covenant fails for want of certainty."

In the case of Fergen v. Lyons (1916), 162 Wis. 131,132, 155 N.W. 935, the court was asked to construe a provision in a farm lease reading as follows: "The party of the second part has the first privilege of renting the farm if not sold at the end of the year." The court there held that such a clause was susceptible of being made certain by the application of settled rules for construction.

In the case of Pelikan v. Spheeris (1948), 252 Wis. 562,563, 32 N.W.2d 220, the court had before it a lease containing this provision:

"It is agreed between the lessors and the lessee that the lessee will submit in writing to the lessors that he wishes to exercise his option to renew the lease on the property herein described for another period of three years time, and after the notice has been received by registered mail, the lessors will agree with the lessee as to the amount of the rent, but it is agreed at this time that the rent shall not exceed the sum of two hundred ($200) dollars per month if the option is exercised for the renewal of the lease by said parties."

That provision was held to be sufficiently definite and certain to be valid and enforceable.

In the instant case the provision for renewal is too indefinite and uncertain to be enforceable and it is void. In the lease before us no procedure is outlined, no method is indicated, and no standard is set up for determining the rental and terms of a new lease. No resort to the settled rules for construction of the language of the covenant to renew can give meaning or substance to it. The courts cannot be called upon to write contracts or to supply omissions.

A determination of this first issue makes it unnecessary to consider the remaining arguments raised by the appellant.

By the Court. — The judgment is reversed and the cause is remanded with directions to enter judgment in accordance with this opinion.