Henry Rahr's Sons Co. v. Buckley

• Decision Date: 09 February 1915
• Citation: 150 N.W. 994,159 Wis. 589
• Parties: HENRY RAHR'S SONS CO. v. BUCKLEY.
• Court: Wisconsin Supreme Court

159 Wis. 589

150 N.W. 994

HENRY RAHR'S SONS CO.

v.BUCKLEY.

Supreme Court of Wisconsin.

Feb. 9, 1915.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by the Henry Rahr's Sons Company, a corporation, against Fred L. Buckley. Judgment for the plaintiff, and defendant appeals. Affirmed.

The complaint in this action alleges that on the 2d day of March, 1911, the defendant leased to the plaintiff certain premises owned by him known as Harbor View, situated on the bay shore of Green Bay, near the city of Green Bay, for the term of one year from the 1st day of May, 1911, with covenant of peaceable and quiet enjoyment for said term at an annual rental of $500, and also with option on the part of plaintiff to occupy said premises for three years additional time, and that the defendant, on the 1st day of July, 1911, unlawfully and wrongfully entered upon the premises and ejected the plaintiff therefrom, and ever since has occupied the same and kept the plaintiff out of possession, to its damage in the sum of $1,000.

The lease in question is made a part of the complaint. The defendant answered, admitting the execution of the lease and the corporate existence of the plaintiff, and denies every other allegation of the complaint, and sets up several separate defenses, among others that the plaintiff ran the property in an unlawful and illegal manner, and on the 1st day of July, 1911, abandoned the premises; and for a further defense alleges, in substance, that the plaintiff is the owner of a resort near by the defendant's property known as Bay View Beach, and that plaintiff leased the defendant's property for the purpose of injuring the defendant's property and enhancing the value of its own. The defendant also sets up a counterclaim claiming damages on account of the bad reputation which the plaintiff gave the property in managing and running the same as an improper place, and asks damages in the sum of $1,000. The plaintiff replied to the counterclaim, denying the allegations thereof. The portions of the lease material in this case are as follows:

“* * * Witnesseth that the party of the first part hath agreed and doth hereby agree to lease unto the said party of the second part, the following described premises, to wit: Two acres in private claim forty-six (46), with all buildings thereon, known as Harbor View premises or Buckley's, and situated east of the grounds leased by John A. Cusick at Bay Beach, also including the following personal property: One cash register, twelve tables, three dozen chairs, three rustic benches, one cook stove, knives and forks, fifteen dozen bar glasses, three beds, three mattresses, three springs for bed, six pillows, three dozen chairs, one rug, one sideboard, two washtubs, one cupboard, ten towels, three dozen bathing suits, two gasoline stoves, two burners for stoves, one dozen dishes; also including bathhouse.

It is agreed that, if so desired by the party of the second part, an extension of three additional years will be granted at the same rental.

To have and to hold the same for the term of one year from the 1st day of May, A. D. 1911, at the rate of five hundred ($500.00) dollars per annum, payable in installments of ______ dollars monthly, in advance, the said premises to be used for the purpose of hotel and saloon and bathing grounds. * * *

It is further understood and agreed that if the party of the second part, or his assigns, shall fail to pay the rent at the times above stated, or shall use said premises or any part thereof contrary to the conditions herein contained, or shall willfully or maliciously do injury to the same, this lease shall be void as to the party of the second part, and the party of the first part, or his legal representatives, shall be entitled to the immediate possession of said premises, without hindrance or delay, and to a recovery of all damages sustained by the acts of the party of the second part.”

The case was tried by the court and a jury, and after the evidence was all in it was agreed between the parties that the jury should be discharged, and that the case be submitted to the court for its decision upon the facts and the law.

The court found that the plaintiff was entitled to recover. Judgment was entered accordingly, from which this appeal was taken.

Minahan & Minahan and G. F. Clifford, all of Green Bay, for appellant.

Martin, Martin & Martin, of Green Bay, for respondent.

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

The learned trial court below filed the following opinion covering the material questions in the case:

“The defendant owned the property in question. He had a license to sell liquor at retail in a building on the premises. The plaintiff is a brewing company. March 2, 1911, the defendant leased to the plaintiff by written lease said premises; the lease providing that the premises were to be used for the purpose of hotel and saloon and bathing grounds. The term was one year. The rent was $500 per annum in advance. The plaintiff took possession and paid the rent for the year, $500. The plaintiff put one Hunt in possession, under an agreement with him and Buckley that he should run the business under Buckley's license until July 1st, and pay rent to the plaintiff and obtain a license July 1st, and continue to run the business and pay rent. Because Hunt ran his business so as to give the place a bad reputation, the town board made it known to the parties that they would not give Hunt a license. Buckley was willing that the plaintiff should put any one in Hunt's place, to whom the town would grant a license, and so informed the plaintiff. The plaintiff made no application for a license for any one. Buckley applied for a license, requesting the board to grant a license to any one for whom the plaintiff might ask it, and only to act upon his application in case no other application was made. A license was granted to Buckley July 1, 1911. He obtained it for the purpose of retaining the right to conduct, or have conducted, on said premises, a saloon, without which right the rental value of the premises would not exceed $120 per year. The population of the town was 2,600. Including Buckley's, there were 26 licenses in the town June 30, 1907. Hunt left the premises and delivered possession to the plaintiff by returning or handing to it the keys. July 1st Buckley, without plaintiff's permission, broke into the building and took possession of the property, and has conducted a saloon business on the premises ever since. The plaintiff asked a return of the possession. Defendant never returned any of the $500.

[1][2][3] Does the lease contain a condition that the lessor may enter and defeat it, if the lessee fails to continually use the premises as a saloon?

‘A condition is a clause of contingency on the happening of which the estate may be defeated.’ 2 Blackstone, Com. 299.

The language used is to be strictly construed against forfeiture. A mere breach of covenant does not work a forfeiture or give a right of re-entry. Bergland v. Frawley, 72 Wis. 559, 40 N. W. 372. But if the lease also provides that, if the lessee neglects or fails to perform and observe a covenant, the lessor may lawfully enter and terminate the lease, the lessor has that right. Wheeler v. Earle, 5 Cush. (Mass.) 31, 51 Am. Dec. 41, 72 Wis. 562. But the same rule of construction applies when working out a...