Shaft v. Carey

• Decision Date: 02 June 1900
• Citation: 107 Wis. 273,83 N.W. 288
• Parties: SHAFT v. CAREY ET AL.
• Court: Wisconsin Supreme Court

107 Wis. 273

83 N.W. 288

SHAFT

v.CAREY ET AL.

Supreme Court of Wisconsin.

June 2, 1900.

Appeal from circuit court, Fond du Lac county; Michael Kirwan, Judge.

Action by Henry Shaft against Edwin A. Carey and others. From a judgment for plaintiff, defendants appeal. Reversed.

On July 1, 1897, the plaintiff leased of the defendant Carey the saloon or bar room of the Palmer House, in the city of Fond du Lac, for the term of one year, with the privilege to extend the same for four years longer. The lease contained a stipulation that the plaintiff was to have the exclusive right to sell liquors and cigars in the Palmer House Block. Plaintiff went into possession, and, at the expiration of his term, gave due notice of his election for an extension. On November 12, 1898, Carey leased to the defendant Matchette the hotel building known as the “Palmer House,” except certain rooms that had theretofore been leased to others, for a period of five years. This lease contained a stipulation that the “lessee is not to sell or permit to be sold any wine, beer, or liquors, or any kind of cigars, in said hotel, except as is hereafter agreed.” After the original lease was made with plaintiff, and in the years 1897 and 1898, Carey made changes in the inner construction of the hotel, and brought the office and reception room for guests down to the ground floor in the room adjoining the room leased to plaintiff; constructing a passageway between said rooms, placing only a partial screen, by swinging doors, with a large glass panel, with the word “Bar” painted thereon, across the same, opening in and out on a swing hinge. This, it is claimed, was done pursuant to an agreement made at the time said first lease was made. After setting out the facts stated, the complaint alleges that the defendants became jealous of his rights and privileges under his lease, and attempted to avoid the covenants in said lease, and conspired to take away the profits derived from the exclusive right to sell cigars and liquors in said building, and to that end built a lean-to on the east end of the hotel building, using the east wall of the hotel building as one side of the new building, fitted it up for saloon purposes, opened a door from the Palmer House billiard room into said building, and commenced selling liquors and cigars therein. On May 11, 1899, in the nighttime, the defendants closed up and barricaded the door leading from the hotel office to plaintiff's saloon, and cut off his connection therewith. The plaintiff brings this action to require the defendants to remove said barricade, and to restrain them from selling liquors and cigars in the so-called Palmer House Annex. The defendants answered, setting up the lease to Matchette, and admitted the closing up of the door, the building of the Annex, and the sale of liquors and cigars therein, but claimed that the so-called Annex was not a part of the Palmer House Block, and was not covered by the stipulation in plaintiff's lease. The defendant Taylor answered, denying any interest, and alleging that he was merely an employé and agent of the defendant Matchette. Upon certain affidavits, showing that the name “Palmer House Block” was confined to the building itself, and did not cover any of the adjacent land owned by Carey, and upon the answers of the defendants, a motion was made to dissolve the temporary injunction obtained by plaintiff, restraining them from selling liquors or cigars in the Annex. A counter motion was made by plaintiff for judgment upon the pleadings. The latter motion was granted, and from the judgment so entered the defendants have appealed.Bloodgood, Kemper & Bloodgood and H. H. Hayden, for appellants.

Edward S. Bragg, for respondent.

BARDEEN, J. (after stating the facts).

The plaintiff's motion for judgment ought not to have been granted unless it can be said that every fact essential to his entire cause of action has been alleged, and has not been put in issue by the defendants' answers. By his complaint the plaintiff seeks to have the barricade erected by defendants at the rear door of his saloon removed, and also to restrain the sale of liquors and cigars in the so-called Annex. The first ground of relief rests upon the implied covenant of quiet enjoyment of the leased premises, and the other upon the positive covenants contained in his lease, giving him the exclusive right of sale of liquors and cigars in the Palmer House Block. Whether any ground for relief exists as to the first question suggested depends upon the facts alleged regarding the leasing of the premises. The premises covered by the lease are mentioned as the “saloon or bar room of the Palmer House,” including the card rooms contiguous thereto; also, a coal bin in the basement, and space therein for his ice box and for the storage of liquors. It appears that at the time the original lease was made the office and guest room of the hotel were on the second floor of the hotel building, somewhat remote from the room in question. It is not clear from...