Richter v. Fassett

• Decision Date: 01 July 1948
• Citation: 33 N.W.2d 230,253 Wis. 101
• Parties: RICHTER v. FASSETT.
• Court: Wisconsin Supreme Court

253 Wis. 101

33 N.W.2d 230

RICHTER

v.FASSETT.

Supreme Court of Wisconsin.

July 1, 1948.

Appeal from a judgment of the Circuit Court for Sawyer County; Clarence E. Rinehard, Judge.

Reversed.

The action was commenced on September 17, 1947 by Pauline Richter, plaintiff, against William Fassett, defendant, to recover damages for breach of an oral lease for one year. The action was tried to a jury and a special verdict returned to the effect that plaintiff had performed her agreement to make the premises habitable; that she did not agree to cancel the lease and that while she sustained no damages by reason of defendant's occupancy she did sustain $150 damages by reason of defendant leaving the premises after two months' occupancy. Upon motions after verdict the court entered judgment for plaintiff on January 5, 1948.

Defendant appeals. The material facts will be stated in the opinion. Davis & Davis, of Hayward, for appellant.

Ralph W. Steller, of Hayward, for respondent.

WICKHEM, Justice.

On July 15, 1947 plaintiff leased a cabin to defendant for one year. The lease was oral and the rent reserved was $37 per month. Defendant paid two months' rent and occupied the premises until September 15th when he left the cabin and thereafter ceased to pay rent. Plaintiff sued for damages for breach of the oral lease.

Defendant contends that almost immediately after defendant had left the premises plaintiff and her husband took possession and have either rented them to others or have occupied them ever since. Defendant invokes the rule that the abandonment of the premises and the unqualified re-entry by the landlord amounted to a surrender and that defendant was no longer liable for the payment of rent under his oral lease. Mahonna v. Chaimson, 214 Wis. 396, 253 N.W. 391. The facts in relation to this contention are largely established by the evidence of plaintiff herself. Shortly after September 15 she rented the cabin to men working on the highway. From about the 23d of October plaintiff and her husband stayed at the cabin weekends and still do. During that period plaintiff's husband lived continuously at the cabin but plaintiff had a position requiring her absence during the week. Plaintiff admitted that since defendant left the cabin has been occupied virtually continuously although not always by tenants.

Under these facts we are of the view that having taken possession in an unqualified manner and not for the limited purpose of mitigating damages by reletting the premises plaintiff terminated her right to any rent following September 15th and that her complaint should have been dismissed.

It is true that this court in Weinsklar Realty Co. v. Dooley, 200 Wis. 412, 228 N.W. 515, 67 A.L.R. 875, followed by Elmor Realty Co. v. Community Theatres, 208 Wis. 76, 241 N.W. 632 held that the taking of possession by a landlord for the purpose of leasing is an equivocal act and that the right of the landlord to elect the course he will pursue remains with him until he takes some step which evidences an intent to make a choice between the two inconsistent remedies that are open to him. ‘Such a choice was made in this case when the plaintiff...