Kollock v. Kaiser

• Decision Date: 10 December 1897
• Citation: 73 N.W. 776,98 Wis. 104
• Parties: KOLLOCK v. KAISER ET AL.
• Court: Wisconsin Supreme Court

98 Wis. 104

73 N.W. 776

KOLLOCK

v.KAISER ET AL.

Supreme Court of Wisconsin.

Dec. 10, 1897.

Syllabus by Marshall, J.

1. A general covenant in a lease to extend or renew implies an additional term equal to the first, and upon the same terms, including that of rent, except the covenant to renew.

2. A general covenant to extend or renew a lease does not imply a continuation or renewal of the special covenant, because that would have the effect, by construction, to make the

lease perpetual, or to call for renewals in perpetuity. Such interests in land are not favored in the law, and are not, therefore, upheld by construction or deduction from general language.

3. The question of whether a covenant to extend a lease implies the making of a new lease, was settled in this state in Orton v. Noonan, 27 Wis. 272, in the affirmative, and a fortiori, a covenant to renew must have the same effect.

4. The only pleadings in actions under the Code are those prescribed thereby. It constitutes a complete system which, while it preserves all the remedies, both at law and in equity, of the old system, the methods of procedure and system of pleading, by which the jurisdiction of the court is exercised and the remedies pursued, are now found therein and in the rules of court.

5. The system of pleading, consisting of complaint, demurrer, answer and reply, together meet the necessities of all parties in all cases, and in all courts. The answer, setting up new matter constituting a counterclaim, where a defendant seeks affirmative relief against a plaintiff, and the answer setting up facts entitling a defendant to such relief against his co-defendant as the court has jurisdiction to grant under section 2883, Rev. St., take the place of the cross bill of the old practice. The answer of a defendant, seeking relief of his co-defendant, is in the nature of a cross bill, but is an answer and a code pleading nevertheless.

6. A defendant seeking relief of a co-defendant must set up the facts entitling him thereto by answer, and therein claim such relief, and it is proper for the court to require him to serve such answer on the defendant affected thereby and to require the latter to plead to such answer by way of demurrer or reply.

7. Where there is an answer by a defendant, setting up new matter entitling him to relief against a co-defendant, and claiming such relief, and the facts constituting the cause of action in that regard independent of the principal action would not entitle such defendant to any relief in equity, if the complaint fails for want of equity, or is dismissed, that carries with it the incidental issues between the co-defendants.

Appeal from circuit court, Dane county; K. G. Siebecker, Judge.

Action by George C. Kollock against Joseph Kaiser and Mary L. Scribner. From an order sustaining a demurrer to the complaint, plaintiff appeals, and from an order overruling her demurrer to a so-called cross complaint of defendant Kaiser, defendant Scribner appeals. Reversed on plaintiff's appeal. Affirmed on defendant's appeal.

On the 1st day of April, 1886, Wiley S. Scribner leased to the plaintiff the premises described in the complaint, for the term of 10 years from that day, “with the privilege of a renewal.” Since that time, up to the commencement of this action, plaintiff occupied the premises under said lease, and performed all the conditions thereof on his part to be performed. Subsequent to the making of the lease the lessor died and defendant Mary L. Scribner became the owner of the property by descent, under the laws of this state. Thereafter she sold the property and conveyed the same to defendant Kaiser by deed with full covenants, taking back a mortgage to secure the payment of $12,000 of the purchase money. She held the mortgage and the debt which it secured at the time of the commencement of this action. Plaintiff duly demanded a renewal of his lease for an additional term of 10 years by the making of a lease containing all the provisions of the old one, except the covenant for renewal. The demand was refused. This action was brought against the defendant Scribner and her vendee Kaiser on a complaint setting forth all the aforesaid facts. Two causes of action were set forth in the complaint, one for specific performance and the other to quiet title. Defendant Scribner demurred to the complaint: First, for want of jurisdiction of the court of the subject of the action and over the person of the defendant; second, for improper joinder of two causes of action; third, for failure to state facts sufficient to constitute a cause of action. The demurrer was sustained upon the ground that it appeared from the facts set forth in the complaint, that plaintiff was entitled to hold the leased premises for an additional term, by extension of the old lease under the agreement for renewal, and was not entitled to a new lease. Defendant Kaiser answered, setting up facts entitling him to relief against his grantor on the covenant in his deed by an abatement of the amount of purchase money secured by the mortgage, to the extent of the damages that would result to him from the plaintiff's claim for a renewal of the lease, if such claim prevailed against defendant Scribner. Defendant Scribner moved the court to strike out that part of the answer constituting, or attempting to set up, a cause of action against her. The motion was denied and the court ruled that the answer stand as a cross complaint by defendant Kaiser against his co-defendant. Thereafter such co-defendant demurred to the so-called cross complaint: First, for want of jurisdiction of the person of defendant and the subject of the action; second, that several causes of action were improperly joined; third, for failure to state facts sufficient to constitute a cause of action; fourth, for insufficiency as a counterclaim or cross complaint. The demurrer was overruled, and exception to the ruling was duly taken. Plaintiff appealed from the order sustaining the demurrer of defendant Scribner, and she appealed from the order overruling her demurrer to the so-called cross complaint of defendant Kaiser.

Bushnell & Rogers, for appellant Kollock.

Bashford, O'Connor & Aylward, for appellant Scribner.

Hall & Sheldon, for respondent.

MARSHALL, J. (after stating the facts).

Upon the appeal of the plaintiff we are first called upon to determine whether the agreement to renew the lease was void for uncertainty. On that subject Laird v. Boyle, 2 Wis. 431, is cited by respondent, where the court said, in substance, that a general agreement for a renewal, no time or terms being stated, is void for uncertainty. That appears to be a clear adjudication of the question before us. It will not do to ignore it by saying it is mere obiter. True, there was another ground upon which the case was decided, which was plain and decisive, but the decision was placed on both grounds, so one was judicially determined as well as the other. But the doctrine there announced, upon which the respondent relies, we may safely venture to say is not supported by any subsequent adjudication of this court or by reputable authority elsewhere. It evidently did not receive careful consideration at the time, as a careful reading of the authorities cited by the learned judge who wrote the opinion fails to disclose any good reason for basing the decision thereon. None of them really appear to touch the question.

Generally, every contract relating to real estate must be definite in its terms in order to bind the parties so that a court of equity will enforce it by judgment for specific performance. But where the parties thereto have made their contract in writing and it will reasonably admit of two constructions, the court will prefer that which will uphold it rather than the one which will defeat it. Under this familiar rule, leases containing a general promise to renew have been uniformly held to refer to the terms of the lease in which such language is used, so as to be, in effect, an agreement to renew upon the precise terms and conditions therein stated, except as to the condition to renew. That has been uniformly excepted because of the effect, otherwise, to make a perpetual lease. Such result is not favored in the law, so it cannot be accomplished by mere construction, but only by express and unmistakable language. One of the leading cases on this subject, cited by all text writers, is that of Rutgers v. Hunter, 6 Johns. Ch. 215, where the court held that a covenant to renew for another term carried with it, by implication, an agreement to renew on the same terms and conditions, as to all the essential conditions of the lease. The chancellor said, in substance, that the covenant was not void for uncertainty because of the failure to specify the terms; that the words used implied the same terms as those contained in the first lease, except the provision which would tend to create an agreement for a perpetual lease; that such an extraordinary covenant as that must be supported by language clear and certain, and not be deduced by construction from the mere general agreement to “renew the lease.” To the same effect are Cunningham v. Pattee, 99 Mass. 248;Ranlet v. Cook, 44 N. H. 512;McAdoo v. Callum, 86 N. C. 419;Tracy v. Exchange, 7 N. Y. 472;Transportation Co. v. Lansing, 49 N. Y. 499;Hughes v. Windpfennig (Ind. App.) 37 N. E. 432. In Gear's Landlord and Tenant (section 102) the rule is laid down thus: “A stipulation for renewal merely, will be enforced as meaning a renewal upon the same terms, with the exception of incidental covenants, including the renewal covenant.” In Wood's Landlord and Tenant (page 935), on the same subject, it is said: “An unqualified covenant to renew a lease involves the making of a new lease, and for the same period as the original lease. It is well settled, however, that this does not include a new covenant to renew, or any covenant of the former lease that has been...