Lincoln Fireproof Warehouse Co. v. Greusel

• Decision Date: 08 October 1929
• Citation: Lincoln Fireproof Warehouse Co. v. Greusel, 199 Wis. 428, 227 N..W. 6 (Wis. 1929)
• Parties: LINCOLN FIREPROOF WAREHOUSE CO. v. GREUSEL ET AL.
• Court: Wisconsin Supreme Court

199 Wis. 428

227 N.W. 6

LINCOLN FIREPROOF WAREHOUSE CO.

v.GREUSEL ET AL.

Supreme Court of Wisconsin.

Oct. 8, 1929.

Appeal from Circuit Court, Milwaukee County; Gustave G. Gehrz, Judge.

On reargument. Former opinion adhered to.

For former opinion, see 224 N. W. 98.--[By Editorial Staff.]Miller, Mack & Fairchild and J. G. Hardgrove, all of Milwaukee, for appellant.

Fish, Marshutz & Hoffman, of Milwaukee (Irving A. Fish and W. H. Voss, both of Milwaukee, of counsel), for respondents.

STEVENS, J. (on reargument).

The former opinion filed in this case bears evidence of the careful study that was given the case by the court, the result of which study was so clearly expressed by the able jurist who then spoke for the court. In rendering its decision the court was aided by very able briefs submitted when the case was first argued, as well as the briefs later submitted in response to the request of the court.

Reargument was ordered because it was asserted that the rule adopted in Selts Investment Co. v. Promoters, 197 Wis. 476, 485, 222 N. W. 812, and Strauss v. Turck, 197 Wis. 586, 222 N. W. 811, required a reconsideration of the decision in this case. That assertion was based on the fact that those cases declared it to be the duty of the landlord to take possession of the premises abandoned by the tenant, and to use reasonable diligence to relet the same, in order to minimize damages, while the former decision in this case held that, by resuming possession in order to perform his duty to the tenant, the landlord accepted surrender of the premises by the assignees, thereby releasing them from further liability to pay rent.

Mature consideration leads the court to the conclusion that this result presents no ground for a modification of the former decision. While the assignees were in privity of estate, they were under obligation to pay the rent reserved in the lease. The original lessee was also liable because he contracted to pay to the end of the term. The assignees made no such contract. Their liability ended when their privity of estate was terminated.

Appellant bases its position on the unsound proposition of law that privity of estate between the landlord and the assignees continued after the assignees had tendered possession by abandoning the premises, and such tender had been accepted by the landlord taking possession. Such course of conduct constitutes a surrender of all the estate or interest which the assignees had in the leasehold, “by act of operation of law,” as that phrase is used in section 240.06 of the Statutes. Burnham v. O'Grady, 90 Wis. 461, 463, 63 N. W. 1049.

[1] Had the assignees contracted to pay the rent, they would not have been released by the re-entry of the landlord, provided that he, by notice or other proper means, made plain the fact that he entered for the purpose of performing his...