Poposkey v. Munkwitz

• Decision Date: 01 March 1887
• Citation: 68 Wis. 322,32 N.W. 35
• Parties: POPOSKEY v. MUNKWITZ.
• Court: Wisconsin Supreme Court

68 Wis. 322

32 N.W. 35

POPOSKEY

v.MUNKWITZ.

Supreme Court of Wisconsin.

March 1, 1887.

Appeal from circuit court, Milwaukee county.

The action is by a lessee against his lessor for failure of the latter to give the lessee possession of the leased premises according to the covenants in the lease. Under date of October 22, 1884, the parties executed an indenture of lease in and by which the defendant leased to the plaintiff his store, No. 411 Broadway, in the city of Milwaukee, from November 15, 1884, to May 1, 1890, at a yearly rent therein reserved, and therein covenanted that, on paying such rent, and performing the conditions contained in such lease to be performed by him, the plaintiff should have the quiet and peaceful possession of the leased premises during such term. The defendant was unable to give the plaintiff the possession of the leased store because he had theretofore leased the same to Wilde & Uhlig for three years, commencing May 1, 1883, and Uhlig was lawfully in possession thereof under such lease when the plaintiff's term under his lease commenced, and so continued in possession thereafter. The plaintiff paid the defendant rent until December 1, 1884, at the execution of the lease, being $41.67, as stiputated in the lease, and performed all his covenants therein contained. The plaintiff also put some goods in the store with the consent of the defendant, but was required by Uhlig to take them away. This involved an expenditure by the plaintiff of $14.40. It is averred in the complaint that, for 12 years before the making of the lease first above mentioned, the plaintiff had carried on, in the city of Milwaukee, and for the last five years in the vicinity of the leased store, a wholesale and retail business in pictures, picture-frames, and artist's materials, and in manufacturing picture-frames, and had a very large and lucrative custom and patronage established in said business; that he leased the store No. 411 Broadway for the purpose of carrying on and continuing the same business therein, of which the defendant had notice; that such store was especially well located, and adapted to the requirements of plaintiff's said business; that, relying upon having possession of the leased store at the stipulated time in which to carry on his business, he purchased a large stock of goods adapted to the holiday trade, in December, which is the most profitable trade during the year; and that he lost this trade by reason of his failure to obtain possession of the store. Also that, upon the refusal of the defendant to give him possession of the store, the plaintiff diligently endeavored, but without success, to obtain another store, suited to the requirements of his business, and that the rental value of the leased store for the term of the lease is at least $2,000 more than the rent thereof reserved in the lease. The closing paragraph of the complaint is as follows: “That, by reason of the premises, plaintiff's said business has been broken up and destroyed, and his trade and custom gone, and his stock of goods purchased to carry on his business at said store so leased has become greatly depreciated and destroyed in value, and plaintiff has lost the profits which he would and could have made in carrying on his aforesaid business at said leased premises since said fifteenth day of November, 1884, had said leased premises been surrendered and delivered up to him as agreed by defendant, and his said leasehold interest in said premises been lost and destroyed, to the damage of plaintiff in the sum of five thousand dollars.” Judgment for $5,000 and costs is demanded. The answer denies in detail each of the above averments, except that the defendant owned the store No. 411 Broadway, and executed a lease thereof to the plaintiff as alleged in the complaint.

The controversy on the trial was confined to the question of damages. The plaintiff offered testimony for the purpose of proving the special damages stated in the complaint, but the same was rejected, and the judge held that the measure of the plaintiff's damages is the difference between the rent reserved in the lease and the actual rental value of the store, together with the expense of removing the plaintiff's goods (before mentioned) from the store after the term of the lease commenced, and confined the testimony to those elements of damages. Only a single question was submitted to the jury, which is as follows: “What was the actual value per annum of the premises 411 Broadway, Milwaukee, described in the lease from defendant to plaintiff, from and after November 15, 1884?” The jury answered $1,200. The rent reserved in the lease until May 1, 1887, is $1,000, and $2,000 thereafter. On April 5, 1886, the court gave judgment for the plaintiff for $272.14 damages, and for costs of suit. It is recited in the order for judgment that the plaintiff admitted he went into possession of the leased store March 1, 1886. It is understood that the judgment is made up of $200 per annum (being the excess in the value of the rent as found by the jury, over and above the rent stipulated in the lease) from November 15, 1884, to March 1, 1886, and the item of $14.40 above mentioned. The item of $41.67 paid defendant on account of rent was disallowed for the reason (as stated by the court) that the lease to plaintiff “assigned, by operation of law, the premises during Uhlig's term to Mr. Poposkey, and he has the right to recover the rent from Mr. Uhlig.” The plaintiff appeals from the judgment.

Dey & Friend, for appellant.

Nath. Pereles & Sons and Jenkins, Winkler, Fish & Smith, for respondent.

LYON, J.

This action was brought to recover damages for the failure of the defendant to put the plaintiff in possession of the store No. 411 Broadway, Milwaukee, leased by the former to the latter, at the time stipulated in the lease as the commencement of the term. It is substantially an action for a breach of the covenant for quiet enjoyment contained in the lease. 1 Tayl. Landl. & Ten. § 309. This appeal presents for determination the question, what is the true rule of damages for a breach of that covenant in this case, in view of the facts proved and offered to be proved therein? The rule is undoubtedly the same as in an action for a breach of covenants for title in an absolute conveyance; that is to say, had the plaintiff purchased the store No. 411 Broadway of the defendant, and taken an absolute conveyance thereof, instead of a lease for five or more years, under the same circumstances which existed when the lease was executed, the measure of his damages for a breach of the covenants for title in such conveyance would be the same that it is for a breach of the covenant for quiet enjoyment in the lease. 3 Suth. Dam. 147; Blossom v. Knox, 3 Pin. 262. Indeed, the covenant for quiet enjoyment is one of the covenants for title in a conveyance. Rawle, Cov. 17. It is also said to be “an assurance consequent upon a defective title.” Id. 125.

The general rule of damages which obtains in England and many of our sister states for a breach of covenant for title was first authoritatively laid down in 1775, in the case of the common pleas of Flureau v. Thornhill, 2 W. Bl. 1078. The defendant covenanted to sell the plaintiff a rent for a term of years issuing out of leasehold premises, but, without fault on his part, the defendant was unable to make good title thereto. The plaintiff claimed damages for the loss of his bargain, but it was held that he was not entitled thereto. DE GREY, C. J., said: “Upon a contract for a purchase, if the title proves bad, and the vendor is (without fraud) incapable of making a good one, I do not think the purchaser can be entitled to any damages for the fancied goodness of the bargain which he supposes he has lost.” BLACKSTONE, J., said: “These contracts are merely upon condition, frequently expressed, but always implied, that the vendor has a good title.” The rule of the above case has been much considered in both England and this country; and while its scope has been more clearly defined, and its application somewhat limited by later adjudications, the rule itself, as applied to cases in which the vendor honestly believed he had a good title, but the title failed for some defect not known to him, and of which he was not chargeable with notice, is now firmly established in the jurisprudence of England by the judgment of the house of lords in Bain v. Fothergill, L. R. 7 Eng. & Ir. App. 158. As already observed, the rule prevails in several of the United States, including this state, under the limitations just mentioned, of good faith and excusable ignorance of the vendor of defects in his title. Indeed, these are scarcely limitations, but rather an interpretation of the qualification “without fraud,” in the opinion by DE GREY, C. J., in the principal case. The rule as it now stands has been applied in this state in Rich v. Johnson, 2 Pin. 88;Blossom v. Knox, 3 Pin. 262;Nichol v. Alexander, 28 Wis. 118;Messer v. Oestreich, 52 Wis. 684, 10 N. W. Rep. 6, and in other cases.

Under this or any other rule, the plaintiff is entitled to recover the consideration paid by him on account of the purchase. Hence, in the present case, whatever may be the measure of damages, the plaintiff should have recovered the amount he advanced for rent, and interest thereon. The reason given by the circuit judge for excluding this amount from the plaintiff's recovery, to-wit, that he could recover the rent from Uhlig, the tenant under the paramount lease, is conceived to be unsound. The plaintiff did not purchase a term subject to the lease of Uhlig, but an absolute term; and while he might, perhaps, have treated his lease as an assignment of the rents accruing under the prior lease, and collected the same from Uhlig, there is no rule of law which compels him to do so. Indeed, had he done so, it possibly might have operated as a waiver of any claim for damages...