Selts Inv. Co. v. Promotors of the Federated Nations of the World, Inc.

• Decision Date: 18 June 1928
• Citation: 197 Wis. 471,220 N.W. 220
• Parties: SELTS INV. CO. v. PROMOTORS OF THE FEDERATED NATIONS OF THE WORLD, INC., ET AL.
• Court: Wisconsin Supreme Court

197 Wis. 471

220 N.W. 220

SELTS INV. CO.

v.PROMOTORS OF THE FEDERATED NATIONS OF THE WORLD, INC., ET AL.

Supreme Court of Wisconsin.

June 18, 1928.

Appeal from a judgment of the Circuit Court for Milwaukee County; Hon. E. T. Fairchild, Judge, affirming a judgment of the Civil Court for Milwaukee County; Hon. Michael Blenski, Judge.

Action by the Selts Investment Company against the Promoters of the Federated Nations of the World, Inc., and others. Judgment for plaintiff in the civil court was affirmed on appeal to the circuit court, and defendants appeal. Affirmed.--[By Editorial Staff.]

See, also, 220 N. W. 222.

Action begun in Civil Court December 21, 1925.

Judgment entered October 22, 1925. On appeal to the circuit court, the judgment of the civil court was affirmed on the 31st day of January, 1927.

The plaintiff, on February 26, 1925, by a written instrument, leased to the defendant corporation a certain piece of real estate in the city of Milwaukee, for the term of three years from May 1, 1925, at the agreed rental of $1,800 per annum, payable in monthly installments of $150 in advance, on the first day of each and every month during said term. The defendants other than the corporation in writing duly guaranteed the payment of the said installments of rent.

On the 1st day of September, 1925, the lessee failed to pay the monthly installment of rent due on that day, and thereafter, on the 12th day of the month, the plaintiff caused to be served upon the lessee the three-day notice provided for in subdivision 2 of section 291.01 of the Statutes, demanding either that the rent be paid or that possession of the leased premises be delivered to the plaintiff at the expiration of three days from the time of the service of such notice. Pursuant to said notice, and on the 15th day of September, 1925, the lessee vacated the leased premises, and surrendered the possession thereof to the plaintiff, and such possession was accepted by the latter. The September rent remaining due and unpaid, an action was thereupon commenced by the plaintiff against the lessee and the guarantors on the lease, for the recovery of the amount of the September rent.

At the conclusion of the trial in the civil court, judgment was rendered in favor of the plaintiff in accordance with the prayer of its complaint; and, an appeal having been taken to the circuit court from such judgment, the judgment of the civil court was affirmed.Lenicheck, Boesel & Wickhem, of Milwaukee, for appellants.

Michael Levin, of Milwaukee, for respondent.

DOERFLER, J.

The rent became due and payable on the 1st day of September, 1925, but was not paid. On the 12th day of September, the lessee, being still in default, was served with the usual statutory notice to quit, requiring it to either pay the rent due or to vacate the premises within three days from the time of the service of the notice upon it. A compliance with the notice to quit required the lessee to pursue one of two alternative courses, viz., to pay the rent or to surrender up possession of the demised premises within the period of three days provided for in the notice. If within the three-day period the rent was paid, the right to continue in possession remained intact and in full force and effect, to the same extent as though the rent had been promptly paid when it fell due. If, however, for any reason the lessee deemed it advisable not to pay the rent as required by the notice, then, in order to avoid unlawful detainer proceedings, it became incumbent upon it to surrender and deliver up the possession of the premises, as it was required to do under the notice given in accordance with section 291.01 of the Statutes. Promptly, and within the allotted period of time, the lessee vacated the premises and surrendered the possession thereof to the plaintiff, and manifested such surrender by delivering the key to plaintiff's representative, who promptly accepted the same.

The sole question to be considered and determined in this case involves the right of the plaintiff to enforce collection of the rent due on the 1st of September. The remedy afforded by the unlawful detainer proceedings, where there is a...