Bergland v. Frawley

• Decision Date: 08 November 1888
• Citation: 72 Wis. 559,40 N.W. 372
• Parties: BERGLAND v. FRAWLEY ET AL.
• Court: Wisconsin Supreme Court

72 Wis. 559

40 N.W. 372

BERGLAND

v.FRAWLEY ET AL.

Supreme Court of Wisconsin.

November 8, 1888.

Appeal from circuit court, Eau Claire county; E. B. BUNDY, Judge.

In August, 1883, the defendant M. S. Frawley purchased and acquired the title to certain real estate in the city of Eau Claire, on which was situated a building known as the “Northwestern Hotel,” “then occupied by the plaintiff, Mrs. Bergland, and used by her as a boarding-house. On September 8, in that year, Frawley leased the premises to the plaintiff, or to her and one Bostrom jointly. The plaintiff paid the rent in advance, and Frawley gave her a receipt therefor in these words: “Received of C. Bergland the sum of three hundred dollars, in full for rent of Northwestern Hotel from September 8, 1883, until January 8, 1884; being four months' rent, at $75 per month. Dated September 8, 1883. M. S. FRAWLEY.” In October, 1883, the plaintiff left Eau Claire temporarily, and went to the northern portion of the state, where she kept a boarding-house for men employed on the Sault Ste. Marie Railroad; leaving Bostrom in charge of the leased building, and the business carried on therein. She left her children, and, as she alleges, some personal effects, in the hotel, in charge of Bostrom, and was absent seven weeks. About November 17, 1883, and before the plaintiff returned to Eau Claire, the defendant M. S. Frawley, assisted by the other defendant, T. F. Frawley, re-entered and took possession of the leased property, (Bostrom having vacated the same,) moved the hotel to another foundation, broke it up considerably, and rebuilt or repaired it. The plaintiff brought this action in February, 1884. After stating that she was lessee of the hotel until January 8, 1884, and enumerating the property she had therein on November 17, 1883, she alleges in her complaint as follows: “That on the 17th day of November, 1883, the defendants willfully, wrongfully, and maliciously, intending to injure the plaintiff, entered upon said premises, and undermined and raised said building from its foundation, and removed it therefrom, and broke open the doors of said building, and ejected and drove the plaintiff's children from said building, and damaged the said property and furniture therein contained, and rendered the same entirely worthless, by breaking said property, and throwing a part of said property out of said building, and by placing and leaving all of said property exposed to the weather and unprotected, whereby the same was lost, stolen, and destroyed; and forcibly prevented this plaintiff from occupying said premises, and from pursuing her said business therein.” She alleges her damages, by reason of such wrongful acts, to be $2,000, and demands judgment for that sum and interest. The defendants answered, in substance, (1) that if the plaintiff had any interest in the leased premises, or in the property described in the complaint, she owned the same jointly with Bostrom, who, it is therein alleged, was then living in Eau Claire; (2) that long before November 17, 1883, the plaintiff sold, assigned, and transferred all her interest in such premises and building, and in the property described in the complaint, to Bostrom, and that at the time of the alleged wrongful acts she had no possession of, or interest in, such premises or property; (3) that the premises were leased under an express agreement or condition that the same should be surrendered to the lessor, M. S. Frawley, by the lessees, whenever demanded by such lessor, he returning to plaintiff the unearned rent,--this was to enable the lessor to make certain contemplated improvements on the property, should he desire to do so, before the termination of the lease; and (4) that on or about November 17, 1883, Bostrom removed from the hotel, and voluntarily surrendered possession of the leased premises to the lessor. The testimony introduced on the trial is very conflicting. It is sufficient to say of it that it tends to prove the material allegations both of the complaint and answer. The rulings of the court on the trial are sufficiently stated in the opinion. The jury returned a general verdict for the defendants. They also found specially that Bostrom was a copartner with the plaintiff in the business of the Northwestern Hotel during the fall of 1883, and that he is dead. A motion on behalf of the plaintiff for a new trial was denied, and judgment entered for the defendants pursuant to the verdict. The plaintiff appeals from the judgment.James Wickham, for appellant.

H. H. Hayden, for appellees.

LYON, J., ( after stating the facts as above.)

The premises in question were leased for the term of four months, and that term had not expired when the defendants re-entered and took possession thereof, and removed and improved the hotel. They did so under the alleged stipulation in the lease that the plaintiff, or plaintiff and Bostrom, should surrender the leased premises to the lessor, the defendant M. S. Frawley, whenever he desired to proceed with the contemplated improvement of the property. Such stipulation is not a condition which, upon re-entry by the lessor, determines the lease; but a covenant, the breach of which does not determine the lease, but only gives the lessor a right of action to recover damages for such breach. 1 Tayl....