Eldred v. Sherman

LyoN, C. J. I. The defendant maintains that under the agreement of renewal contained in the lease of 1885, to the effect that the renewed lease shall be subject to all the con [186] ditions contained in the expiring lease, there should be inserted in the renewed lease a stipulation that, if payment of rent, etc., shall be promptly made as therein specified, the lessor agrees to accept $10 per quarter in,full for the rent. Defendant was willing to accept and execute a lease based upon the defective appraisal if that stipulation were inserted therein. On the other hand, the plaintiff tendered a lease, based upon that appraisal, with a deduction for prompt payment of one third from the annual rent, as ascertained by the appraisal,.— that being the percentage of deduction in the lease of 1885. Both parties thus adopt and ratify the appraisal, although made by but two of the appraisers, and rest their controversy on the question whether the $40 stipulation should be inserted literally in the renewed lease. If it should be inserted therein, the defendant is not in default, for he offered to accept and execute such a lease; otherwise he is in default. The lease of 1885 (as did all the preceding leases) contains special provisions for ascertaining the annual rental of the leased lot on the renewal of the lease at its expiration. These provisions seem to cover the whole subject of the amount of rent to be reserved in the renewed lease. Such amount is not affected by the amount thereof reserved in the old lease, but is ascertained upon an entirely new and independent basis. In each lease the deduction for prompt payment from the agreed annual rental was arbitrarily fixed at from one sixth to one third of such rental. These circumstances tend strongly to show that the stipulation that the renewed lease should be subject to all the conditions of the expiring lease was not intended to include, and does not include, any conditions therein concerning the amount of annual rent or deductions therefrom for prompt payment. ¥e are inclined to the opinion that such is the true- construction of the covenant for renewal in the lease of 1885 and in the preceding leases. [187] But the plaintiff was tendered a lease in which the annual rental is based upon the valuation of the lot, which both parties have approved, which lease contains a deduction of one third of such rental for prompt payments. This is the rate of deduction in the lease of 1885, and a higher- rate than is specified in either of the four preceding leases. Because the plaintiff has thus proposed to make such deduction, we will assume, for the purposes of the case, that the stipulation for .renewal requires that a deduction for prompt payment be specified in the new lease. ¥e cannot conceive that the parties intended that the rent, if promptly paid, should be precisely $40 per quarter, no more, no less, without regard to the changing value of the lot. It seems much.more reasonable to believe that the assumed stipulation in the lease of 1885 for a deduction for prompt payment goes to the rate of such deduction, and does not call for a stipulation that the reduced rent should be just $40 per quarter in any and all contingencies. A deduction of one third from the annual rental is the highest rate of deduction that can possibly be claimed, and that is the rate provided for in the proposed lease which the defendant refused to accept. This construction affords a certain guide in any contingency for ascertaining the deduction on each renewal of the lease; whereas, should the lot be appraised so low that the annual rental should be less than $160, the construction contended for by defendant would render the stipulation entirely nugatory. Our conclusion is that defendant is in default for not accepting and executing the lease tendered, or for not joining in proceedings for another appraisal when requested to do so by plaintiff. II. The learned counsel for defendant, in his very able and ingenious argument, maintained that, admitting the defendant is in default for the reasons just stated, still he is the tenant of the plaintiff, either at will or by sufferance; [188] and bence that this action cannot be maintained, because the notice required by statute to terminate such tenancy has not been given. E. S. sec. 2183. The ‘lease of 1885 expired May 1, 1890. The parties immediately set about obtaining the necessary data for a renewal thereof. Such data, to wit, the appraisal of the lot, was obtained, which, although defective, was approved and adopted by both parties. Then the defendant refused to take a lease, although one in proper form was tendered to him, and also refused to join in obtaining a new appraisal. He thus put himself in default. True, the defendant remained in possession of the lot pending the attempt to agree on a new lease thereof, but he was not, in any correct sense of the term, a tenant of plaintiff, either at will or by sufferance. The plaintiff expressly repudiated any such relation by refusing to accept rent after the termination of the lease of 1885. The doctrine that a tenancy by sufferance necessarily arises when a man comes into possession of lands lawfully, but holds over wrongfully after the determination of his interest therein, has been qualified in this state and elsewhere in an important particular. It was held by this court in Meno v. Hoeffel, 46 Wis. 282, that, in order to create a tenancy by sufferance in favor of a tenant holding over after the expiration of his term, the consent of the landlord, either express or implied, to the continuance of the tenancy, is essential. The opinion in that case by the late Mr. Justice Taylor contains a statement of the reasons for such qualification, which 'need not be repeated here. It is quite true that the ruling in that case narrows the distinction which has sometimes been supposed to exist between tenancies at will and by sufferance. But since the adoption of our statutes on the subject of terminating such tenancies (sec. 2183, R. S.), which puts them on precisely the same footing, it is not unjust or unreasonable thus to narrow the supposed distinction between them; and [189] were it entirety abolished the result would be, at most, the abolition of a mere technicality of the old law, for the retention of which no good reason can be given. In this case the possession of the defendant, after the expiration of the lease of 1885, must be referred to the renewal lease which the parties intended to execute, and when such lease failed through the default of defendant such possession became wrongful from the expiration of the former lease. There is nothing in the case showing that plaintiff gave either express or implied consent to such occupancy, independently of the proposed renewal-lease. It would be most unreasonable and unjust, after defendant’s default, to charge plaintiff with the obligations of a landlord, and confer upon the defendant the rights of a tenant, merely because plaintiff allowed defendant to remain in possession of the lot after the lease of 1885 had terminated, pending a settlement of the terms and the execution of the new lease, which failed through defendant’s default alone. Our conclusion is that after such default no tenancy existed, either at will or by sufferance; and hence the defendant was not entitled to the statutory notice required to terminate a tenancy. By the Court.— The judgment of the circuit court is affirmed.