State ex rel. Alliance Elevator Co. v. Helms

WiNsiow, J. The question before us is whether the first cause of action stated in the complaint in the action of the Alliance Elevator Company v. Wells & Mulrooney, is a cause of action upon contract, or whether it is a cause of action in tort for the wrongful detaining of property or for a penalty. If it be a cause of action upon contract, then no execution against the person could issue upon the judgment thereon, and the defendants were rightly discharged. Const. Wis. art. I, sec. 16. But if it be a cause of action in tort for wrongfully detaining property or for a penalty, within the meaning of subd. 1, 2, sec. 2689, E. S. 1818, then the action might have been commenced by order of arrest, and an execution against the person might issue after the return of a property execution unsatisfied. E. S. 1878, sec. 29Y3. The complaint was before this court upon demurrer in Alliance Elevator Co. v. Wells, 93 Wis. 5. It was then held that the two causes of action were properly united in one action, because they arose out of the same transaction. It was not [284] then decided whether the first cause of action was upon contract or in tort, although the last sentence of the opinion, in which Lane v. Cameron, 38 Wis. 603, is practically overruled, is difficult to be understood, except upon the theory that the first cause of action was considered to be upon contract. However, the point was certainly left undecided in that case, but it is now squarely before us for decision. It is very certain that the pleader, in drawing the complaint, intended to state a cause of action for double rent, under sec. 2185, R. S. 1818, because he so states, and certainly he attempts to allege the necessary facts. That section reads as follows: “If any tenant shall give notice of his intention to quit the premises by him holden, and shall not accordingly deliver up the possession thereof at the time in such notice specified, such tenant, his executors a/nd administrators, shall from thenceforward pay to the landlord", his heirs or assigns, double the rent which he should otherwise have paid, to be recovered at the same time and m the same ma/rm&r as the single rent, and such double rent shall continue to be paid during all the time such tenant shall continue in possession as aforesaid.” In the present case it will be seen by the allegations of the complaint that the lease was for a definite period, ending September 1, 1893, subject to an option to the tenants to renew it for a year by giving thirty days’ notice in writing. Such notice was not given, and hence the term came to an end September 1, 1893, by the terms of the lease. It seems more than doubtful whether sec. 2185, R. S. 1818, was intended to apply to such a case at all. Directly following two sections relating solely to tenancies at will or by sufferance, it seems, both by its terms and by its position in the statute, to refer to cases where the term is indefinite and the tenant has the power to terminate it by giving notice. 2 Wood, Landlord & T. (2d ed.), § 556; 2 Taylor, Landlord & T. (8th ed.), § 529; Regan v. Fosdick, 43 N. Y. Supp. 1102, 19 Misc. 489; Johnstone [285] v. Hudlestone, 4 Barn. & C. 922. It is not necessary to decide this question, however. The plaintiff, in his complaint, stated facts which he claimed brought the case within that section, and he recovered double rent under that section. Necessarily, the court passed on the question whether the case was one properly brought under that section, and held that it was. This may have been error, but it effectually decided the question in that case, so that it cannot be attacked in any collateral proceeding. Therefore the question is whether an action under sec. 2185 is an action upon contract or in tort. We are of the opinion that it is an action upon implied contract. The language of the section indicates this quite clearly. The person holding over is called a “ tenant ” during the entire time of his holding, both before and after his notice. This is quite noticeable when the language of the following section, providing for the wilful holding over by tenants for life or years, is noticed. In this last-named section (sec. 2186) the tenant holding over is not called a tenant after his term has expired, but is called “ such person holding over.” Again, sec. 2185 provides that the executors and administrators of the tenant shall be liable to pay the double rent, as well as the tenant himself. Certainly it could not have been meant that the executors or administrators were to be held liable in a tort action, and subject to imprisonment upon execution against the person. But the conclusive consideration clearly is that the section provides that the double rent is to be recovered at the same time and m the same manner as the single rent. Single rent is recoverable in a contract action, and, if the statute means anything, it means that the double rent is to be recovered in the same form of action. The statute steps in and doubles the rent, but goes no further. The rent at the increased rate is still rent for the use of the property, and not damages for the wrongful withholding thereof. [286] These conclusions necessitate affirmance of the order of discharge. If the judgment was based in part upon a cause of action upon contract, there could be no execution against the body, even though it was based in part also upon a cause of action in tort. Miller v. Scherder, 2 N. Y. 262. Imprisonment upon such a judgment is imprisonment for debt. By the Oowrt.— Order affirmed.