Acme Ground Rent Co. v. Werner

• Citation: 139 N.W. 314,151 Wis. 417
• Parties: ACME GROUND RENT CO. v. WERNER ET AL.
• Decision Date: 07 January 1913
• Court: United States State Supreme Court of Wisconsin

151 Wis. 417

139 N.W. 314

ACME GROUND RENT CO.

v.WERNER ET AL.

Supreme Court of Wisconsin.

Dec. 10, 1912.

Dissenting Opinion Jan. 7, 1913.

Appeal from Circuit Court, Milwaukee County; John C. Ludwig, Judge.

Action by the Acme Ground Rent Company against David Werner and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions to render judgment for the defendant, dismissing the complaint on the merits.

Siebecker, Kerwin, and Barnes, JJ., dissenting.W. B. Rubin, of Milwaukee (Horace B. Walmsley and Max Schoetz, Jr., both of Milwaukee, of counsel), for appellants.

A. Hubschmann, of Milwaukee, for respondent.

WINSLOW, C. J.

The defendants in July, 1910, leased of plaintiff a store building in Milwaukee, “to be used and occupied as and for the sale of ladies', misses', and children's wearing apparel and for no other purpose whatsoever.” The lease also contained the following provisions: “And it is further mutually agreed, by the parties hereto, that, in case said premises shall be rendered untenantable by fire or other casualty, the lessors may at their option terminate this lease or repair said premises within sixty days, and failing to so repair the same, or upon the destruction of said premises by fire, the term hereby created shall cease and determine, and in case of the damage by fire or other casualty to any building belonging to the lessors, of which building the premises hereby demised are a part, then the lessors may at their option terminate this lease by giving said lessee thirty days' written notice of their election so to do, and thereupon this lease shall terminate thirty days after the service of such notice. While the demised premises are untenantable, caused by fire, rent shall cease for such period.” On January 6, 1912, a fire occurred and damaged the building, so that it was not possible to use the same for the sale of goods. The damage was not so great, however, but that the doors could be locked and the goods safely remain in the store, and by request of the insurance companies the goods were left on the shelves pending the adjustment of the insurance and until March 19th, when the lease was canceled by the plaintiff and repairs were begun. There was no competent testimony showing any surrender of possession by the defendants to the plaintiff during this interval; hence it must be considered that the defendants remained in possession. This action was brought by the plaintiff to recover the rent accruing under the terms of the lease for the period from January 6th to March 22d. On the facts above stated a verdict for the plaintiff was directed and rendered, and the only question on this appeal is whether that direction was right.

[1] In support of the judgment below, we are cited to a number of cases construing the very common statutory provision which declares that a tenant may surrender possession of leased premises which have been destroyed or made untenantable by fire or similar cause, and thereby be released from further payment of rent. Stats. Wis. Sanb. Sup. § 2196a. These cases universally hold that the lessee must surrender possession in order to be released from payment of rent under this provision. Typical cases of this kind are Johnson v. Oppenheim, 55 N. Y. 280,Roach v. Peterson, 47 Minn. 291, 50 N. W. 80, and Gay v. Davey, 47 Ohio St. 396, 25 N. E. 425. If the defendants' rights in this action were dependent upon the statute, we do not see how the judgment could be disturbed, but they are not.

[2] The lease contains provisions on that subject which clearly guarantee to the tenants greater rights and privileges than those given by the statute. These provisions, after giving the lessor certain options as to the termination of the lease, or the making of repairs in case of destruction of the building, or untenantability produced by fire or other casualty, contain this definite and positive clause: “While the demised premises are untenantable, caused by fire, rent shall cease for such period.” The words are about as clear as they could well be made. They were unquestionably intended to give the tenants greater rights than those secured to them by the statute,...