Scheuer & Tiegs, Inc. v. Benedict

173 Wis. 241 | Wis. | 1921

Vinje, J.

The objections that plaintiff is not the real party in interest and so cannot maintain the action; that the tenancy was not from month to month; and that a slight error in the description of the leased premises invalidated the action, are not well taken. They are not of sufficient importance to merit treatment and we mention them only to show they have not been overlooked.

The serious question is as to the sufficiency of the notice to quit. It requires that possession be delivered by April 30. April 30 was the last day of the tenancy from month to month, and if, as is argued, “by April 30” is meant before April 30, then the notice is insufficient, because under a tenancy from month to month the notice must be to terminate the tenancy at the end of the month and not before. State ex rel. Engle v. Hilgendorf, 136 Wis. 21, 116 N. W. 848; Sutherland v. Drolet, 154 Wis. 619, 143 N. W. 663; Molter v. Spencer, ante, p. 38, 180 N. W. 261. The word by as marking the completion of the time required or assigned for the performance of an action, according to Murray’s Dictionary, means “On or before, not later than, within.” Webster’s International gives “At or before, not later than.” When used with a verb in the perfect tense the word “by” more naturally denotes a completed action at the time boundary marked by it, as “The work must be finished by Friday.” On the other hand, “The work must finish by Friday” perhaps more naturally means including Friday. In the notice in question the word “by” is used with the verb “to quit and deliver up,” denoting present tense and not completed action. In view of that and of the further fact that it must be presumed a valid notice was intended to be given, we reach the conclusion that “by April 30” in the notice included April 30. Under our decisions, as before stated, the notice would not be sufficient if construed as defendant’s counsel contends; hence, conceding that the term has two meanings, one including the date expressed and the other excluding it, the reasonable construction is the one that gives validity to the thing sought to be done, for no one ought to presume that a nugatory act is intended.

The following cases found in Words and Phrases under the title “By,” denoting on or before, have held, in the context considered, that the word “by” excluded the day or date set as a boundary of time: Express Pub. Co. v. Aldine Press, 126 Pa. St. 347; 17 Atl. 608; Rankin v. Woodworth, 3 Pen. & W. 48; Wilson v. Rodeman, 30 S. C. 210, 8 S. E. 855; Miller v. Phillips, 31 Pa. 218.

These cases, also found in Words and Phrases, have held that the day or date marking the boundary is included: Coonley v. Anderson, 1 Hill (N. Y.) 519; Wachsmuth v. Routledge, 36 Oreg. 307, 51 Pac. 443; Elisabeth City C. Mills v. Dunstan, 121 N. C. 12, 27 S. E. 1001; Higley v. Gilmer, 3 Mont. 433; Ruprecht v. Delacamp, 165 Fed. 381; Weir v. S. & J. T. Clark, 4 Ala. App. 302, 58 South. 793; Dukes v. Gore & Co. 11 Ga. App. 743, 76 S. E. 365; Goldman v. Broyles (Tex.) 141 S. W. 283.

By the Court. — Judgment affirmed: