Fergen v. Lyons
| Decision Date | 11 January 1916 |
| Citation | 162 Wis. 131,155 N.W. 935 |
| Parties | FERGEN v. LYONS ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an Order of the Circuit Court for Dane County; E. Ray Stevens, Circuit Judge.
Action for specific performance. There was a general demurrer to the complaint which was over-ruled.
The plaintiff, with some other matters not material to be stated, pleaded the following for a cause of action:
Defendants Nettie Lyons, George, J. S., Nettie, Frank, Edward and Charles Grady, April 1st, 1914, rented their farm to the plaintiff for the term of one year. The lease was in writing, the body thereof being as follows:
“The said party of the first part doth lease, demise and let unto the said party of the second part the following described premises:
A certain farm lying in the towns of Fitchberg and Madison, consisting of about 278 acres of land, and familiarly known as the Grady farm, in the towns of Fitchberg and Madison, County of Dane and State of Wisconsin. The farm is rented for one year from date, for six hundred ($600) dollars, one hundred ($100) dollars cash, three hundred ($300) dollars about November 1st, and the other two hundred ($200) dollars before the time is up.
All the seed to be sowed to be furnished by the first party. Fence repairing to be done by the party of the second part, and material furnished by the party of the first part.
The party of the second part has the first privilege of renting the farm, if not sold, at the end of the year.”
Immediately after the lease was executed, plaintiff took possession of the leased premises and has since occupied the same. He has carried on the farm and expended money in respect thereto with a view of a second term, particularly by seeding 65 acres to grass. Relying on the privilege of a renewal, he has not put his own farm into proper condition for occupancy for the season of 1915. Failure of the lessors to keep their covenant for a renewal term will work irreparable injury to plaintiff. By reason of the farm not having been occupied for some time prior to plaintiff's term, the sum of $600 was a higher rental than would ordinarily be demanded for a single year lease, which was the reason why the plaintiff was given the right to renew the lease, providing the farm was not sold.
Some time in February, 1915, or at some later date, the lessors, by their duly authorized agent, leased the farm, on terms unknown to the plaintiff, to John and Sadolf Swenson, and on the 6th day of March thereafter, plaintiff received notice to vacate the premises. When the Swensons took their lease, they had notice of plaintiff's rights. He had paid and tendered to the agent of the lessors all the rent agreed upon according to the terms of the lease, except $400 which he tendered to the lessor's agent on condition of his receiving a renewal lease. On the first day of April, 1915, he duly demanded such renewal lease for one year from that date, and the same was refused. Plaintiff is now ready and at all times has been ready to pay the $400, provided he secures a renewal of the lease according to its terms.Aylward & Olbrich, of Madison, for appellants.
Hill & Spohn, of Madison, for respondent.
[1][2] A covenant to renew a lease, if the terms are definitely fixed, or means are provided whereby they may be made certain by construction, is enforceable. This court considered that subject at length in Kollock v. Scribner, 98 Wis. 104, 73 N. W. 776, where the following rules were deduced from the authorities: A covenant to renew a lease calls for a new lease,--not an extension of an old one. An unqualified covenant to renew a lease calls for a new lease for the same period and upon the same terms as the original lease, except the agreement to renew.
“When the agreement for a renewal contains language other than that appropriate to a general promise, so that, by resort to the settled rules for construction, the language of the covenant to renew and conditions of the renewal cannot be made certain, then such covenant fails for want of certainty.”
The promise to renew in this case is in language, not strictly appropriate to a general agreement to renew. It is ambiguous. Therefore the question arises whether it can be made certain by settled rules for construction.
[3] One of the best known rules for construction is that it must be presumed parties, in making a contract, intended to use language effectively in all parts of it. Therefore, the instrument should be so construed as, if possible, to carry out such purpose. Jacobs v. Spalding, 71 Wis. 177, 36 N. W. 608;Hicks Printing Co. v. Wis. Cent. R. Co., 138 Wis. 584, 120 N. W. 512;Burgess v. Dane Co., 148 Wis. 427, 134 N. W. 841. So if the agreement to give the respondent the first privilege of renting the farm, if not sold at the end of the year, can reasonably be read as an agreement upon the contingency mentioned to give a renewal for another year on the same terms as those of the original lease, that must be preferred to any meaning which would involve fatal uncertainty.
[4] Another well known rule for construction is that a clause of a contract which is ambiguous by itself, must be read in connection with the rest of the instrument so as to clear up the uncertainty, if possible. Chicago, M. & St. P. Ry. Co. v. H. W. Wright Lumber Co., 123 Wis. 46, 100 N. W. 1034; Jacobs v. Spalding et al., supra. Applying that, our attention is attracted to those portions of the lease which indicate that it was contemplated respondent should incur expense which could not be beneficial to him without his carrying on the farm for a second term, and the broad discretion given him in respect to farming the land with reference to a future season. He agreed to do all the work of repairing the fences and was allowed free hand as to seeding the land to grass.
[5] Another rule for construction is that a contract may be read in the light of the circumstances characterizing its making for the purpose of clearing up ambiguities. Within that rule, the allegation of the complaint falls that the rent stipulated in the lease was disproportionate to the advantages of a one year lease.
[6] The way the parties understood the lease in performance of its terms is another consideration. Respondent prepared sixty-five acres of the plow land for the next year's work by seeding the same to grass and appellant co-operated with him in the matter. It was argued that this was a trifling matter, but we do not so regard it. In seeding down the land to grass, respondent may well have been to considerable expense in properly preparing it so as to secure a good catch and put the surface in proper condition for a good hay crop and for advantageously harvesting the same.
[7] Another and very important rule in such cases as...
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