Sheppard v. Rosenkrans

| Wis. | Feb 1, 1901

WiNslow, J".

The lease in question was an Illinois contract, and the appellant’s main contentions are based upon the provisions of that part of the statute of frauds of Illinois relating to contracts concerning lands or interests therein which reads as follows: “No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, for a longer term than one year, unless such contract ■or some-memorandum or note thereof shall be in writing ■and signed by the party to be charged therewith or some person thereunto by him lawfully authorized in writing signed by such party.” Sec. 2, ch. 59, Starr & C. Ann. Stats. TIL 1896.

The appellant’s argument is that the occupation of the premises after April 30, 1896, must be a holding under the notice of election to hold for the additional term, and that ;such notice having been given by an agent whose authority, if any, was not in writing signed by BosenTerans, it follows that the notice was inadmissible in evidence, and ineffective even if admitted. The conclusive answer to this contention, as well as to the minor contentions founded on the statute referred to, is that, if the option provided for in the lease was exercised, the lease became a lease for both the original and the extended terms, and hence the holding was under the original lease and not under the notice. As said in 1 McAdam, Landlord & T. (3d ed.), 160: “A lease for one year, or three additional years if the lessee elect, is of itself a lease for four years if the lessee elect to continue it beyond the first year. This is so because, if the tenant makes the election, he still holds under the original demise; there is no further act to be done by the lessor.”

The stipulation was not to “ renew ” or “ extend ” the lease, which stipulation would require the making of a new lease (Kollock v. Scribner, 98 Wis. 104" court="Wis." date_filed="1897-12-10" href="https://app.midpage.ai/document/kollock-v-scribner-8185742?utm_source=webapp" opinion_id="8185742">98 Wis. 104), but it was a stipulation that by the giving of a certain notice the lease itself should cover an additional four years. It was an unconditional lease for the period expiring April 30, 1896, and a conditional lease for four years thereafter. The condition was the giving- of a certain notice by the lessee, but it might just as well have been the happening of an event over which neither party had control, such as the death of a person or the falling of a tree. When such required event happened, the. condition was satisfied, and the lease became a lease for the additional period by its own terms. The act of the lessee in giving the- notice was not the making of an agreement, but the performance of a condition upon which the previously made agreement depended. So the statute referred to does not apply to the notice of the exercise of the option or privilege, and the authority of the agent to make it is not required to be in writing.

But it is said that the notice was not given ninety days before the 30th day of April, 1896, and hence that the condition never was in fact performed. This objection, however, is met by the fact that the notice was given and accepted without objection on the score of time. There are few cases where the time within which an act is required to be done may not be waived by the parties where the rights of others are not affected, and the facts in the present case show an undoubted waiver by acceptance and action upon the notice without objection.

An exception to a portion of the charge requires notice. In charging the jury upon interrogatory A|-, the trial judge gave an instruction covering nearly a page and a half of the printed case. The first part of the instruction, nearly a page in length, was substantially a correct statement of the considerations which the jury might take into account in answering the question. Then followed, however, this clause: “Although it is not my duty to tell you the effect of your answer, I may state that, if you answer that it was occupied by the 'Weber Jewelry Company under an_ arrangement or bargain made with Mr. Weil, it will relieve Mr. Rosenhrans of any liability, because the occupation which continued after the renewal of this lease was all paid for.” The defendant excepted to the entire instruction. The court undoubtedly committed error in stat: ing'to the jury the legal effect of their answer to the question upon the rights of the parties, under numerous recent decisions of this court; and, had exception been taken specifically to this part of the charge, we should feel obliged to reverse the case. The rule is-familiar, however, that an omnibus exception which includes two or more distinct propositions, some of which are correct, is insufficient to present the question as to the correctness of any one of the propositions singly, and under this rule we cannot consider the exception.

Other minor errors are assigned, but we find no merit in them, and they do not require specific treatment.

By the Oourt.— Judgment affirmed.