Kneeland v. Schmidt

• Decision Date: 16 December 1890
• Citation: 47 N.W. 438,78 Wis. 345
• Parties: KNEELAND v. SCHMIDT.
• Court: Wisconsin Supreme Court

78 Wis. 345

47 N.W. 438

KNEELAND

v.SCHMIDT.

Supreme Court of Wisconsin.

Dec. 16, 1890.

Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Circuit Judge.Glenway Maxon, for appellant.

Somers, Somers & Dorr, for respondent.

TAYLOR, J.

This is an action to recover two months' rent, upon a written lease of real estate. The lease was for two years and eight months, from August 1, 1887. The defendant paid the rent for one year, until August 1, 1888, and this action is to recover the rent for the months of August and September, 1888. By the terms of the lease the rent is payable in monthly installments. The defense set up in the answer is that the lease was surrendered by the defendant in July, 1888, and that such surrender was accepted by the plaintiff, and that, upon such surrender, the defendant abandoned the possession of said leased premises, and the plaintiff immediately took possession of said premises, and has retained possession of the same to the time of the commencement of this action. The evidence on the trial shows that in or about July, 1888, the defendant notified the plaintiff that he could no longer occupy the leased premises, and pay the rent therefor under said lease, and desired the plaintiff to surrender the lease, and release him from the further payment of rent under the same; that plaintiff did not at the time say he would do so, or agree to make such surrender, and said he would think of it. The evidence further shows that in the month of August, 1888, the plaintiff, by his employes and servants, drew upon the leased premises a large quantity of dirt, and filled up the leased lot to the depth of from one to two feet in depth. The evidence also shows that after this action was commenced, and in the fall of 1888, plaintiff built a dock in front of said leased premises; and in August, 1889, eight months before the expiration of the lease, by its terms, the plaintiff sold a large part of the leased premises, and put the purchaser in possesion thereof, and the plaintiff admits that he took possession of the leased premises August 14, 1889. Upon the evidence the court submitted the case to the jury, upon the question whether the plaintiff took full and exclusive possession of the leased premises after the defendant had abandoned them, and at what time he took such possession. The jury found that the plaintiff took full and exclusive possession of the premises on the 30th of July, 1888, and the jury, under the instructions of the court, also found in favor of the defendant. The theory upon which the learned trial judge submitted the case to the jury was that if the defendant had abandoned the leased premises, and offered to surrender the possession of the same to the plaintiff, and that thereupon the plaintiff took the exclusive possession of said premises, it amounted to a surrender of the lease, and the plaintiff could not recover rent under the lease after such possession taken. We think that if there was evidence to sustain the contention of the defendant that he offered to and desired to surrender the lease, and that, after making such offer, the plaintiff took exclusive possession of the leased premises, that would amount to a surrender of the lease, and an acceptance of such surrender by the plaintiff terminated the lease. This contention, we think, is sustained by the authorities. Talbot v. Whipple, 14 Allen, 177;Baker v. Pratt, 15 Ill. 568;Amory v. Kannopffsky, 117 Mass. 351;Hanham v. Sherman, 114 Mass. 19; Grimman v. Legge, 8 Barn. & C. 324; Hegeman v. McArthur, 1 E. D. Smith, 147; 1 Washb. Real Prop. (5th Ed.) pp. 582, 583; Wood, Landl. & Ten. p. 840, § 497, and notes; Telford v. Frost, 76 Wis. 172-175, 44 N. W. Rep. 835, and cases cited on page 172, 76 Wis., and page 836, 44 N. W. Rep.; Witman v. Watry, 31 Wis. 638.

The learned counsel for the appellant contend...