Sizer v. Clark

116 Wis. 534 | Wis. | 1903

Cassoday, O. J.

It is conceded that the lease was extended, as therein provided, to April 1, 1900. By the terms of the optional contract therein contained, the lessor, E. J. Sizer, thereby agreed that in case the defendant “should . . . wish to buy” the premises, at any time during the period of the lease, or the extension thereof, for $3,000, he would sell and deliver the same to him, free and clear of all debts and taxes, for the aforesaid price of $3,000 cash.

The first, eighth, tenth, and eleventh findings of the jury were made by the direction of the court, and the consent of counsel, and are undisputed. The other findings of the jury are amply supported by the evidence. From these findings it appears that, eight days prior to the termination of the lease, the defendant notified E. J. Sizer, the lessor, that he had elected to purchase the premises pursuant to the terms of the contract of sale contained in the lease; that the defendant at that time, and at all times since, was able, ready, and willing to receive a conveyance of the premises, and to make payment therefor as prescribed in the contract; that March 26, 1900, and thereafter np to April 2, 1900, for the purpose <of demanding of R. J. Sizer a deed ©f the premises, and tendering to him payment therefor, the defendant did make diligent and reasonable search and inquiry for R. J. Sizer, and failed to find him; that March 30, 1900, the defendant went to the place of abode of R. J. Sizer in his absence, and made demand for a deed of the premises, and tendered payment therefor, as alleged in the answer; that April 6, 1900, the defendant informed R. J. Sizer that he was ready to accept a deed of the premises, and to pay the agreed price therefor; that that was the first reasonable opportunity for doing so to him in person; and that April 19, 1900, a complete tender of the price, and demand for a deed, were made by the defendant, and refused by R. J. Sizer, as found by the direction of the court and the consent of counsel. Thus it appears that prior to the termination of the lease the defendant informed R. J. Sizer that he wished to buy the premises and pay the agreed price; that he was able, ready, and willing to pay the price and receive the conveyance. True, he was, by reason of the absence of R. J. Sizer, precluded from making an actual tender and demand until a few days after the expiration of the lease. But the agreement only required the defendant to notify R. J. Sizer that he wished to buy, and pay the price of $3,000 cash, to make it binding. Mueller v. Norlman, 116 Wis. 468, 93 N. W. 538; Peterson v. Chase, 115 Wis. 239, 91 N. W. 687. One having an option in writing for the purchase of land has an interest therein. Telford v. Frost, 76 Wis. 172, 44 N. W. 835; Wall v. M., St. P. & S. Ste. Marie R. Co. 86 Wis. 48, 56 N. W. 367.

“An option is, in a sense, a continuing offer of a contract; and, if the offeree decides to exercise his right to demand the conveyance or other act contemplated, he must signify that fact to the offerer.” 21 Am. & Eng. Ency. of Law (2d ed.) ■930.

Suck acceptance may be verbally given, as was done in the-case at bar. Id. Counsel for tke plaintiff invokes tke well-known rule tkat a tenant is estopped fr'om denying kis landlord’s title. Tkat rule is based upon tke theory “tkat tke title of tke lessee is in fact tke title of tke lessor. He comes in and kolds by virtue of it, and rests upon it to maintain and justify kis position.” 11 Am. & Eng. Ency. of Law (2d ed.) 443. So this court held at an early day:

“A tenant cannot dispute tke title of kis landlord, nor during kis term buy in an adverse outstanding title to that of his-landlord under whom ke kolds.” Tondro v. Cushman, 5 Wis. 219.

This court has also held:

“Tke grantee in a deed is not estopped by kis acceptance thereof from showing tkat since ke went into possession the-supposed title of kis grantor has been devested by a paramount lien and transferred to another, and tkat ke is rightfully in possession under suck other.” Moore v. Smead, 89 Wis. 558, 62 N. W. 426.

So it has been held in Illinois:

“As a- general proposition, a tenant cannot dispute kis landlord’s title, but ke may show it has terminated either by its-own limitation or by kis own conveyance.” St. John v. Quitzow, 72 Ill. 334.

So it has been held in Massachusetts:

“A tenant at will is not estopped to - deny that, since kis-own entry into possession, kis landlord’s title has been determined by tke act of tke landlord.” Emmes v. Feeley, 132 Mass. 346.

To tke same effect, Lamson v. Clarkson, 113 Mass. 348.

So it has been held in Maine:

“A tenant is not estopped to deny kis landlord’s title after tkat title, under which kis own tenancy began, has ended, and tke estate has become vested in the tenant himself.” Ryder v. Mansell, 66 Me. 167.

Here, by reason of tke agreement contained in tke lease,. .■and tbe election of tbe defendant, tbe conventional relation of landlord and tenant was superseded and terminated by a •contract for tbe purchase of the premises by tbe defendant •from tbe lessor.

2. Counsel for tbe plaintiff contends that, in order to make •the optional agreement effectual, tbe defendant should have made bis tender to Susan H. Sizbr, to whom R. J. Sizer conveyed tbe permises after making tbe lease. She took by quit-•elaim deed, with full knowledge of all tbe facts, and made no agreement herself. But, as indicated, tbe covenants contained in tbe lease were therein made expressly binding upon tbe •parties thereto, and their respective heirs, executors, administrators, and assigns. R. J. Sizer was not released, however, from bis covenants and obligations to perform tbe contract by conveying to bis mother. lie continued to collect tbe rents after be conveyed to bis mother. When tbe defendant, prior ■to tbe expiration of,tbe lease, expressed to R. J. Sizer a wish to buy the premises at tbe price named, be and bis mother both became bound to make conveyance. Tbe making of tbe -conveyance and tbe payment of tbe price were to be concurrent acts. Seeley v. Howard, 13 Wis. 336; Davidson v. Van Pelt, 15 Wis. 341; McWilliams v. Brookens, 39 Wis. 334; Williamson v. Neves, 94 Wis. 656, 69 N. W. 806. Under tbe agreement, tbe price was to be paid to R. J. Sizer by tbe defendant upon conveyance being made to him, whereby be would get tbe title to tbe premises “free and clear of all debts and taxes.”

3. There was no error in admitting testimony as to tbe de-fendant’s ability and readiness to pay tbe purchase price, and that tbe defendant bad acted on tbe assumption that tbe con- - tract was binding.

4. There are a number of exceptions to tbe charge. Tbe • one on which counsel seems to place most reliance is that tbe court read to tbe jury portions of tbe answer in presenting Tbe issues to tbe jury. Tbe charge seems to be fair through■out. Neither that exception to the charge, nor any other, has any merit. We find no error in the record.

By the Gourk — The judgment of the circuit court is affirmed.