Pabst Brewing Co. v. Milwaukee Lithographing Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: KERWIN
• Citation: Pabst Brewing Co. v. Milwaukee Lithographing Co., 156 Wis. 615, 146 N.W. 879 (Wis. 1914)
• Decision Date: 09 April 1914
• Parties: PABST BREWING CO. v. MILWAUKEE LITHOGRAPHING CO.

156 Wis. 615

146 N.W. 879

PABST BREWING CO.

v.MILWAUKEE LITHOGRAPHING CO.

Supreme Court of Wisconsin.

April 9, 1914.

Appeal from Circuit Court, Milwaukee County; O. T. Williams, Judge.

Action by the Pabst Brewing Company against the Milwaukee Lithographing Company. From an order of the circuit court granting a new trial on appeal from judgment in the civil court of Milwaukee county for plaintiff, it appeals. Reversed and remanded, with directions to affirm the judgment of the civil court of Milwaukee county.

Action for unlawful detainer, tried in the civil court of Milwaukee county without a jury, a jury having been waived, where judgment went for the plaintiff, appellant here, and on appeal to the circuit court a new trial was ordered. The appeal here is from the order of the circuit court granting a new trial.

The respondent, Milwaukee Lithographing Company, and its predecessors occupied the premises in question known as 217-219 Third street in the city of Milwaukee for many years prior to April, 1906. On April 19, 1906, a lease was made to the respondent by the appellant for a term of two years expiring April 30, 1908, signed on behalf of appellant by C. W. Henning, vice president, and H. J. Stark, secretary. After the expiration of this lease the respondent occupied the premises as tenant from year to year of the appellant at a rental of $275 per month, payable monthly; the yearly tenancy expiring April 30, 1912. On the 25th day of March, 1912, the appellant mailed the following notice to the respondent:

“March 25, 1912.

Milwaukee Lithographing Company, 217-219 Third St., City--Gentlemen: Please take notice that the lease under which you are holding possession of the property known as 217-219 Third street expires on the 30th day of April, 1912, and we shall from and after that date consider you as tenants from month to month at the rate of $300 per month. As you are well aware, the rental value of down town property has been increased considerable; but, as stated above, we are willing to have you continue as our tenants at the rate mentioned. Hoping to hear from you by return mail as to your intentions the coming year, we are, Yours very truly, Pabst Brewing Company, Real Estate Department, by P. J. M.”

This notice was received by the respondent on the 26th day of March, 1912, to which it made no reply, but commenced to pay under it $300 per month rent, without dissent, objection, or qualification to the terms stated in such notice. Afterwards all formal steps were taken to entitle appellant to possession, and to recover in the unlawful detainer action, if respondent was its tenant from month to month from and after May 1, 1912.Henry W. Stark (James D. Shaw, of Milwaukee, of counsel), for appellant.

F. F. Groelle, J. W. McMillan, and Kronshage, Hannan & McMillan, all of Milwaukee, for respondent.

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

It is suggested by respondent, though not very strenuously pressed in argument, that the order granting a new trial is not appealable. It is said that the appellant is not aggrieved because, if it has a meritorious cause of action, it still has opportunity to substantiate it on a trial in the circuit court.

[1] The right of appeal is statutory, and the question turns on whether section 3069, Stats., reaches the present order. Section 3069, Stats., enumerates the appealable orders, and provides that, when an order of the circuit court grants a new trial, such order may be carried to the Supreme Court by appeal. It may be said that this statute has reference to orders for new trial in cases where the action was brought in the circuit court originally, and not to cases carried there by appeal from the civil court. This statute was in force when the act establishing the civil court was passed. Its terms are general and apply to all orders for new trial made by the circuit court. We see no reason why it does not cover an order for a new trial made by the circuit court in a case brought there by appeal from the civil court. We think the order is appealable. Hanna v. Chicago, M. & St. P. Ry. Co. et al., 146 N. W. 878, decided herewith.

[2] The main contention in this court is that there was no monthly tenancy, but, on the contrary, when the notice to quit was given, the respondent was holding over as tenant from year to year, or at least until May 1, 1913. It is argued that the notice and service thereof were insufficient. We have set out the notice in the statement of facts. It is brief, but to the point, and we think sufficient under the statute. Section 2187, Stats., provides that, if a tenant for a year or more shall hold over after the expiration of his term, he may, at the election of his landlord, be considered a tenant from year to year upon the terms of the original lease, but that such tenancy may be terminated at the end of any year after the expiration of said term by either party to said lease upon giving to the other party thereto a notice in writing, not less than 30 days prior to the date of such expiration, that he elects to terminate such lease at the end of such year.

The respondent, having remained in possession, and commenced paying the increased rent according to the terms of the notice, accepted its terms, and became a tenant from month to month, unless the terms of the notice were in some way modified. Williams v. Foss-Armstrong H. Co., 135 Wis. 280, 115 N. W. 803. Counsel for respondent endeavor to distinguish the instant case from Williams v. Foss-Armstrong H. Co., supra, on the ground that the tenancy from month to month mentioned in the notice was modified by evidence which showed a holding over for a year from May 1, 1912. The civil co...