West Concord Milling Co. v. Hosmer

The following opinion was filed April 17, 1906: Qassoday, O. J. Most of the findings of the jury were in. favor of the defendants.' They were to the effect that the-elevator pit was improperly constructed and leaked; that such defect was known to the plaintiff at the time of making the-lease, but was not discoverable by the exercise of ordinary care and diligence in inspecting the mill generally; that the-use of the mill was materially lessened by reason of such defect; and that the defendants had sustained damage by reason thereof in the sum of $232-. 50. But the defendants were not allowed to recover such damages on their counterclaim, because the court found, upon the undisputed facts, that by using ordinary care and diligence in operating the mill the defendants could have prevented the wheat in the elevator pit from becoming wet from the water therein, and that they paid their rent monthly in advance under the lease for each of the first six months of its duration with full knowledge of [12] •sucb defective condition of tbe elevator pit. So the defendants were defeated on their counterclaim, and, since they have •not appealed, the controversy as to that, and the ruling of the •■court thereon, are necessarily eliminated from the case. The important question for determination is whether, upon the facts found by the jury and the undisputed evidence, the ■court was justified in dismissing the complaint and ordering .judgment in favor of the defendants. The defendants claim that they, were justified in refusing to pay the seventh instalment of rent, and those subsequently accruing, by reason of the defective condition and leakage of the elevator pit, which materially lessened the use of the mill, and which facts were known to the plaintiff at the time of making the lease, but were unknown to the defendants at that time, and not then discoverable by the exercise of ordinary care and diligence in inspecting the mill generally. In addition to the facts stated it appears and is undisputed, in effect, that a short time after -the defendants had paid the instalment of rent due January 15, 1903, and before the next monthly instalment became due, •the defendants informed the plaintiff that they would have to give up the mill; that the plaintiff replied that they could do so if they would get a man as good as they were; that the defendants said they would try, but never paid any rent thereafter; and thereupon, and on or about February 15, 1903, the defendants surrendered the leased premises to the plaintiff, and the plaintiff accepted such surrender and immediately •took full and exclusive possession thereof, and has retained, ■such possession ever since. Did such facts relieve the defendants from further payment of rent? In an English case decided by the court of King’s Bench long ago, a dispute had arisen between the landlord and tenant, whereupon “the tenant said to the landlord, ‘I shall quit,’ and the latter said, ‘You may do so, and I shall be glad to get rid of you.’ ” Thereupon the tenant removed 'her furniture from the premises and sent the keys to the land [13] lord, who accepted them, whereupon the landlord brought assumpsit for use and occupation, and it was held that the' landlord “could neither recover the rent, which by virtue of' the original contract would have become due at the expiration of the current quarter, nor rent pro rata for the actual occupation of the premises for any period short of the quarter.”' Grimman v. Legge, 8 B. & C. 324. To the same effect, Auer v. Penn, 92 Pa. St. 444. In this last case it was held that “by such acceptance and surrender the relation of landlord and tenant is ended; and the landlord, having taken possession of the premises, either personally or by another tenant, is estopped from collecting rent.” This court has held that “if before the expiration of the term the lessee offers to surrender the lease, and the lessor thereupon takes exclusive possession of the premises, this amounts to a surrender and acceptance which terminates the lease.” Kneeland v. Schmidt, 18 Wis. 345, 41 N. W. 438. To the same effect, Maxon v. Gates, 112 Wis. 196, 201, 88 N. W. 54, and cases there cited; Commercial H. Co. v. Brill, 123 Wis. 638, 642, 101 N. W. 1101. We must hold that the plaintiff, having accepted such-surrender of the leased premises and taken full and exclusive possession thereof, was thereby estopped from collecting rent which otherwise would have accrued under the lease, subsequent to such surrender. We find no reversible error in the record. By the Court. — The judgment of the circuit court is affirmed. A motion for a rehearing was denied June 21, 1906.