Dougan v. H. J. Grell Co.

Eschweiler, J. The appellant contends in effect that in determining the respective rights and liabilities of the parties, the two leases, the one for the factory premises and the other, made five years later, for the forty-foot strip on which the dwelling house was erected, should be construed as one document, and that whatever additional rights were given to the lessor by the language of the second lease over that contained in the first should be construed as though so contained in the first lease. In support of such view it is urged that the nature of the property included in the lease; the merely nominal rent of $5 per annum for each; the evident value to the then lessor, the owner of a farm in a dairy community, in having such a factory so accessible to his farm; the mention in the second lease that the premises are to be used for the purposes of a residence for a butter-maker, all indicate that the parties to such several instruments intended them to be one lease and for one purpose. Further, that then, when so construed under the forfeiture clause appearing in the second lease and quoted above, giving the lessor the right to re-enter in case the lessee used said premises or any part thereof contrary to the conditions contained in the lease, together with the conceded facts that there had been no use of the premises for the purpose of manufacturing butter and cheese for over two years and that the dwelling house had been rented to one who was not a butter-maker, there was sufficient to authorize the plaintiff as lessor to effectually give the notice of May 8, 1920, above [23] set forth, and thereby there was a re-entry by him and a consequent loss to the lessee of his right to remove, if any such he had, any of the buildings, machinery, or equipment on the premises. We are satisfied that the trial court was correct in holding that the two leases of 1894 and 1899, respectively, were separate and independent agreements as to separate and independent pieces of property. He was also correct in holding that each of such leases must stand or fall upon its own terms and conditions. In the first lease it was provided: “said premises to be used only for the purpose of manufacturing butter and cheese.” Plaintiff contends that such language, in view of the surrounding circumstances, amounts to an implied covenant that there should be for the period of the lease a continuous carrying on of the manufacture of butter and cheese upon said premises. What effect such language might have in case of any attempted use by the lessees of the premises for some other purpose than that of manufacturing of butter and cheese it is not necessary to consider. It is plain, however, that such language cannot be properly construed to imply an undertaking or obligation on the part of said lessees or their successors in interest that there should be continuously kept up for a period of ninety-nine years such butter and cheese industry. It can amount to no more at the most than to prevent the lessees from using the premises for some other than that purpose, but does not impose upon them the much greater liability and obligation of continuously carrying on the specified industry. Henry Ruhr’s Sons Co. v. Buckley, 159 Wis. 589, 150 N. W. 994; Brugman v. Noyes, 6 Wis. 1; Polebitzke v. John Week L. Co. 157 Wis. 377, 383, 147 N. W. 703. The lessees’ failure, therefore, to continue such industry was not a breach of any express or implied condition of the lease and worked no forfeiture. The notice, therefore, of May 8, 1920, given by the plaintiff by his letter [24] claiming such alleged forfeiture was of no avail and he had no cause of action as against the defendant by reason of such failure so to use the factory premises. . The same situation is presented and the same ruling lpust follow as to the clause in the second lease contained, “said premises to be used for the purposes of a residence for¡ butter-maker.” Such provision cannot be. construed t,o contain an implied covenant that there is to be a continued posy session of such dwelling house by one who is a butter-maker., The plaintiff has based his cause of action in this lawsuit upon alleged forfeiture of defendant’s leasehold interest, in the premises on the ground set forth in lessor’s notice of May 8, 1920, supra, and not upon an alleged forfeiture by reason of any other terms or conditions of the leases, and his complaint was predicated upon the rights he claimed existed by reason of such notice and not otherwise, and he must stand or fall thereby. The trial court therefore was correct in his disposition of this matter in that regard. As to the buildings on the factory premises, the court by its seventh finding determined as to. those buildings as well as to the dwelling house that they could be removed without injury to the soil. The correctness of this finding upon the facts is challenged by plaintiff. An examination of the record convinces us that the court, properly so held and that the buildings erected upon the factory premises, together with the machinery therein, were of the nature of fixtures which did not during the period of the tenant’s possession of the premises become parts of the freehold. Each piece was vacant at the time of the making of the respective leases. The buildings were placed thereon by the tenant, continuously assessed as personal property, and the taxes paid by the tenant, who- also kept such build; ings insured. The structures erected and the machinery contained in the several buildings on the factory premises w^re suitable for and devoted to a business purpose. The tenant, therefore needed no express stipulation in the lease to give [25] him the right to remove, at or before the lawful expiration of his term, all of said fixtures and the machinery therein contained. State ex rel. Hansen S. Co. v. Bodden, 166 Wis. 219, 164 N. W. 1009. As to the dwelling house on the second strip of property, defendant by its notice of the proposed auction sale and by its pleadings expressly recites that such dwelling house was not to be removed from the premises. Such disclaimer of course is binding upon the defendant as much as though so declared by a judgment herein. Whether defendant has anything of value to sell without the consent of the lessor under the second lease is not before us under the pleadings and the record. Its mere offer, therefore, to sell its leasehpld interest in the forty-foot strip, the dwelling house to remain thereon, could give a purchaser no greater rights than those consistent with the terms of such second lease and can result, therefore, so far as the lessor is concerned, in no substantial injury to his rights. For want; therefore, of any threatened substantial invasion of his rights under the second lease, there is no sufficient warrant for any aid from a court of equity. The plaintiff having failed to support the reasons alleged by him in his notice of May 8, 1920, upon which he claimed the right of re-entry upon the leased premises for breach of conditions, has no cause of action against the defendant and the court so properly held. The defendant insists that it should be awarded full costs in this case instead of the limited amount as -fixed by the trial court. We see, however, in this case no abuse of the discretion vested in the trial court in such an equitable action to award costs in whole or in part pursuant to sub. (7), sec. 2918, Stats., and the award of costs will not be disturbed. Charles v. Godfrey, 125 Wis. 594, 104 N. W. 814; Boesen v. Preston, 130 Wis. 418, 110 N. W. 208. By the Court. — Judgment affirmed.