H. H. Camp Co. v. Pabst Brewing Co.

The following opinion was filed July 3, 1920: Vinje, J. Appellant assigns as error (1) the conclusion of the court that it became, presently .rather than conditionally liable for the performance of the terms of the lease in view of the contracts between' the parties; (2) the refusal • to receive parol testimony in determining the object of the parties in executing and receiving its agreement to perform the terms of the lease and in showing the real nature of the transaction; and (3) in refusing to hold it was the .duty of plaintiff to mitigate its damages by evicting Weber &. Stuber in 1917, and reletting the premises at the best rent obtainable. We do not deem it advisable in this opinion to treat the arguments of counsel as to many phases of the case, because we deem the plain terms of the written agreement of the parties and their conduct under such 'agreement determine the vital question in the case. The trial court concluded that the written agreement of the Pabst Brezving Company, set out in the statement of facts, created a present contract between it and plaintiff enforceable at once in case Weber & Stuber breached any of the terms of the lease, and did not constitute a conditional relation establishing merely privity of estate in case the Pabst Brewing Company should take [214] possession under the lease, as claimed by appellant. We think the circuit court reached the correct conclusion for these reasons: first, the plain import of the language of the agreement is to that effect; second, the relation of the parties under their contracts made such an agreement a reasonable one; third, the parties so construed it; and fourth, the agreement would be meaningless construed as appellant claims it should be. Very little can advantageously be added by way of argument to the first reason assigned. The language is plain, simple, and direct to the effect that the Pabst Brewing Company will perform all the terms, covenants, conditions, and agreements of the lease to be performed by the lessees. The obligation to perform is specific, is not contingent upon any future condition such as possession, but is absolute in prcesenti and couched in language that includes any breach by the lessees. The Pabst Brezuing Company agreed to see that from the time of the signature of that agreement the terms of the lease would be met by the lessees or itself. As to the second reason, it is true that plaintiff had already made its lease to Weber & Stuber and in doing so had relied upon their credit. But they were to make substantial improvements, and when the agreement was signed it was apparent that Weber & Stuber could not make such improvements without financial aid from some one. A different situation then presented itself from what obtained when the lease was first made. The Pabst Brezuing Company was interested in the location and in Weber & Stuber, and it was natural that plaintiff should want to get additional security for its lease. This it could and did do by requiring the Pabst Brezuing Company to enter into its written agreements as a condition of its consent to the assignment of the lease. Of course it was not contemplated by any of the three parties at the time the consent was given that it was likely that Weber & Stuber would breach their contract with the Pabst Brewing Company and thus allow or cotnpU it to take pos [215] session of the premises. That was a mere contingency that the Pabst Brewing Company wished to guard itself against by securing consent to the assignment of the lease. As a consideration for such consent on plaintiff’s part the Pabst Brezving Company assumed the obligations of the lease, thinking no doubt that it would be, as perhaps it was, reimbursed by the exclusive sale of its domestic draft beer hy Weber & Stuber. In short, plaintiff wished to make -itself more secure, and the Pabst Brewing Company agreed to secure it believing it was for its interest to do so and that in the end it could give such security without cost to itself. The agreement in question was executed in December, 1914. In March, 1916, the plaintiff wrote the Pabst Brewing Company that the lessees were in default, setting out the provisions of the lease as to the payment of taxes and rents and informing the Pabst Brewing Company that the total amount iri arrears was $1,744.03 and interest, and closed the letter thus-. “Under the circumstances we feel compelled to direct your attention to the situation covering the defaults which have occurred under the terms of the lease, and request that you arrange for an adjustment of the matter at your early convenience.” In reply the Pabst Brewing Company stated that it had had an interview with Weber & Stuber and had agreed to assist them in installing a bookkeeping system that would no doubt materially help them in checking their accounts, and that Weber & Stuber had agreed to make arrangements for the payment of taxes and back rent, and closed by saying: “Please keep us posted on any further developments in the premises, and you can rest assured that all matters will receive our prompt attention.” No analysis of this correspondence is necessary to disclose the fact that plaintiff claimed the Pabst Brezving Company was liable for the defaults and that the Pabst Brewing Company admitted it was. Otherwise why should it wish to be kept posted as to a contract relation between plaintiff and Weber & Stuber in which it was not interested. [216] It was not until a year later, after it Rad consulted counsel, that it denied liability. • ... .. The agreement, unless construed as.the circuit court construed it, namely, creating an immediate privity of. contract, would be meaningless. If the Pabst Brewing Company .entered. undér the lease a privity of estate would at once exist between it and the landlord, and it would under such privity of. "estate be bound to perform the lease as to rents and taxes accruing under its occupancy. No written agreement to that effect would be necessary. If it be claimed the agreement entered into would compel the Pabst Brewing Company to pay up all arrears in rents and taxes only in case it took.possession under the lease, a sufficient answer is that the agreement does not so provide. It is. not, as before stated, made upon any condition whatever as to the Pabst Brewing ■ Company except that there be a breach by the lessees, Weber & Stuber, in which event the liability of the Pabst Brewing Company is absolute. Many cases have been cited by counsel on both sides bearing upon collateral questions. . We do not deem them of much importance because we base our decision upon the plain language of the agreement, and hold that it creates a present contract relation, specific and unambiguous both upon its face and as applied to the surrounding circumstances; and was so understood by'the parties, as is shown by the correspondence referred to above. Rights and liabilities resulting from the relation of privity of estate do not arise in this case and are therefore not discussed. Since the contract is clear and unambiguous upon its fáce and as applied to the subject matter, ¡there is no room for construction nor for oral testimony jto show the intent of the parties in entering into it.' Hammond v. Capital City Mut. F. Ins.. Co. 151 Wis. 62, 138 N. W. 92. The trial court’s refusal to receive such testimony / was' therefore proper. '■ A landlord is under no obligation to mitigate damages by [217] evicting the tenant and reletting the premises. In most jurisdictions it is held that even if the tenant abandons the premises he is under no obligation to re-enter and’ relet; that he can stand upon the terms of the lease and recover-rent for the whole term. 24 Cyc. 1164; 16 Ruling Case Law, 669 and cases cited'. It is not here necessary to- hold more than that the landlord is not required to evict the tenant to mitigate damages in behalf of those liable for the rent. - By the Court. — Judgment affirmed. The following opinion'was filed July 7, 1920: