57 Wis. 547 | Wis. | 1883
This court has once held that the complaint, standing alone, states facts which, if -true, entitle the plaintiff to have specific performance of the agreement therein alleged. 51 Wis., 618. The circuit court has found, substantially, that all of the material facts therein stated are true. If the proofs sustain such findings, the judgment is undoubtedly right, unless the alleged acquiescence of the plaintiff in the notice by the defendants of January 8, 1880, that they would vacate the premises and surrender the same on May 1st thereafter to the plaintiff, — ■ and her subsequent acts and delay in enforcing her rights, — • or unless the rejection of the testimony offered to show the nature of the alleged improvements and the effect thereof upon the value of the premises, is fatal to the judgment. The finding of an agreement for the execution of a five years’ lease, is the only finding of fact upon which error is assigned. From this brief statement of the position of the case as presented by this appeal, it is obvious that, at most, but three questions are to be determined. These are: (1) Does the testimony support the finding that the alleged verbal agreement for the execution of a lease for five years was made? (2) If so, is the omission of the plaintiff to respond to the notice of January 8, 1880, and her subsequent acts and delay, fatal to the plaintiff’s right to have specific performance of such agreement? And if not, (3) was the rejection of the offered testimony just mentioned a material error? These questions will be considered in the order stated.
It appears from Aseherman's testimony that he knew the plaintiff desired the firm to lease the premises for five years. Under this state of facts it becomes material to determine whether Asehermcm is bound by the agreement, for, if he is not, the firm is not bound, and the action will fail. The rule of law is that a firm is liable prima faeie for the act of one partner in its behalf, necessarily done for carrying on
Under these circumstances, we think this case is within the rule above stated, and that the firm is bound by the agreement for a lease made in its behalf by Segnitz.
While on this branch of the case, another objection may be noticed. It is said by the learned counsel for the defendants that the testimony does not show that any terms of the lease were agreed upon, except that it should be for the whole building for five years, at the annual rent of $3,000. So far as proof of any other express stipulations are concerned, the statement is true. But it must be remembered that the defendants were, when the agreement was made,
Ye conclude that the evidence supports the finding that the alleged verbal agreement to execute a lease for five years was made, and that the circuit court correctly determined the form and substance of the lease agreed for.
When the notice of January 8, 1880, was served upon the plaintiff, the defendants knew perfectly well that she claimed herself entitled to the execution on their part of a lease for five years, and they could not, by serving such a notice, compel her, at the peril of losing her 'equitable remedy, to reassert that claim. If they could, they might have served such a notice each day, and thus have compelled her to assert daily that she insisted upon a-performance by them of their agreement. This would be intolerable. The plaintiff had demanded that the defendants execute the lease pursuant to the agreement, and such demand, until she saw fit to withdraw it, was a perpetual notice to them that she stood upon the agreement, and relied upon every remedy to enforce it which the law gave her. No mere notice that they proposed so to act as to drive her to seek such remedy, could lay upon her
Again, if it be assumed that the plaintiff made efforts to find another tenant for her property about the time the defendants vacated it, we do not think that fact interferes with her right to have specific performance of the agreement for a lease. She might well shrink from the delay, annoyance, and expense of a litigation with the defendants to enforce her rights, by finding, if she could, another tenant for her property. Succeeding in that, she might indemnify herself against loss by reason of the conduct of the defendants, and thus avoid litigation. Her efforts in that direction worked no injury to the defendants. Had she succeeded, it would have been a great benefit to them. Ye perceive nothing in those efforts upon which to predicate a claim that she has forfeited or waived thereby the cause of action' which she here asserts.
This brings us to the question whether or not the failure of the plaintiff to bring her action until after the defendants vacated her premises is such laches on her part as makes it the duty of the court to deny specific performance. The testimony tends to prove, perhaps proves, that the defendants refused, in the summer of 1878, to execute the lease, and again refused when applied to on behalf of the plaintiff to do so, in November, 1879. The law requires prompt action of one who would enforce specific performance of a contract. In Cheney v. Cook, 7 Wis., 413, this court quoted approvingly the general rule frequently laid down in the
In Sharp v. Milligan, 22 Beav., 606, decided in 1856, a firm consisting of two Milligans and Jowett made a parol agreement with Sharp, the owner, for the lease of a mill and factory, for the purposes of their business, for twenty-one years, determinable at the end of ten years. This was in 1841. In 1843 Jowett signed an agreement with Sharp in the name of the firm for such lease, by which agreement the firm was held bound. The partnership was dissolved in 1847, and Jowett retained possession of the premises and paid the rent until November, 1854, but neglected to pay the rent which became due in May, 1855, and became bankrupt in the same month. On the dissolution of the partnership the Milligans notified Sharp that they were no longer his tenants. Action for specific performance of the agreement of 1843 was commenced in July, 1855, and specific performance thereof by all of the former partners was decreed. After stating and affirming the rule that a person must come speedily for specific performance, or not at all, and distinguishing the case from those cases in which this rule had been applied (in which cases it is said the contracts had not for a long period been acted on at all), Sir JohN Romilly, the master of the rolls, proceeded as follows: “It appears to me extremely difficult to apply that principle to this case. Suppose the simple case of a landlord entering into a contract to let a farm or a mill to a tenant for twenty-one years, and they proceed upon this footing: — the tenant
Shepheard v. Walker, 33 L. T. Rep. (N. S.), 47, decided by Yice-Chancellor BacoN in 1875, is still a stronger case for the plaintiff. The head-notes, which sufficiently state the case and the points decided, are as follows: “In 1857 A. agreed to grant B., in consideration of a premium of £600, a lease of a messuage for a term, of thirty-one years at the yearly rent of £100,— the premium to be paid on the day fixed for completion,— and if from any cause whatever the lease was not completed on the day fixed, B. was to pay interest on the premium until completion. B. was then in possession of the messuage under an
In all essential particulars the above cases are strikingly like the present case, with this difference, perhaps, that there the circumstances upon which the claim of laches was based were stronger against the plaintiff than they are here. In this case the rent was paid to May 1, 1880, and none was due when the action was commenced. The reasoning of those cases, and the results reached by the court, commend themselves to our judgment.. We do not discover that the doctrine of the above cases has been questioned or doubted, either in England or this country. Shepheard v. Walker, supra, is referred to and distinguished in Davenport v. Walker, 34 L. T. Rep. (N. S.), 168, and in Powis v. Lord Dynevor, 35 L. T. Rep. (N. S.), 940, in both of which specific performance was denied. The difference is stated to be that in Shepheard v. Wallier the landlord was enforcing an agreement on a tenant who (as here) had the means of fulfilling it in his own hands, and it was the tenant’s own fault that he neglected to do so, while in the cases there under consideration the facts were otherwise. See, also, Rankin v. Lay, 2 De G., F. & J., 65.
After very careful investigation and consideration, we are
It follows that the judgment of the circuit court must be affirmed.
By the Court.— Judgment affirmed.