W. Concord Milling Co. v. Hosmer

Citation129 Wis. 8,107 N.W. 12
PartiesWEST CONCORD MILLING CO. v. HOSMER ET AL.
Decision Date17 April 1906
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from Circuit Court, La Crosse County; J. J. Fruit, Judge.

Action by the West Concord Milling Company against George A. Hosmer and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

This is an action by the lessor to recover the balance of unpaid rent from the lessees. It appears and is undisputed that July 17, 1902, the plaintiff leased to the defendants the premises described, with all the buildings and appurtenances thereon, for the term of two years from August 15, 1902, with the privilege of buying at the end of the first year for $6,200. The defendants therein agreed to pay to the plaintiff $50 on the 15th day of each month in advance for and during the full term of the lease, with an agreement that if the defendants failed to pay rent as specified, or failed to fulfill any of the covenants therein contained, it should be lawful for the plaintiff to reenter and take possession of said premises, and hold and enjoy the same, without such reentry working a forefeiture of rents to be paid and the covenants to be performed by the defendants for the full term of the lease. This action was commenced to recover $400, being eight installments of rent--the first being February 15, 1903, and the last September 15, 1903--with interest on each installment from the day of its default until paid. The defendants by way of answer admitted the execution of the lease, and the default in paying the rent due February 15, 1903, or at any time since, and by way of counterclaim for $500 damages alleged that at the time of making the lease the plaintiff represented to the defendants that the gristmill was in good condition and would do good work, and the defendants, relying upon such representations, made the lease, whereas, as a matter of fact, as the plaintiff then well knew, the elevator pit was improperly constructed, and leaked, and became full of water and wet, and spoiled a large quantity of grain, and injured and spoiled the flour made therefrom; that by reason of such defects the defendants could not use the mill, and so quit and surrendered possession thereof to the plaintiff; and that the plaintiff accepted such surrender of such premises. The plaintiff replied to the counterclaim by way of a general denial. A trial being had, the jury at the close thereof returned a special verdict to the effect (1) that the elevator pit in the mill was so improperly constructed or out of repair that it would leak and fill with water to the extent that the elevator cups would dip water and injure wheat therein; (2) that such defective elevator pit was not capable of being ascertained by a reasonably careful and prudent person by the exercise of ordinary care and diligence in inspecting the mill generally; (3) that the defendants in the operation of said mill could not, by using ordinary care and diligence, have prevented the wheat in the elevator pit from becoming wet from water therein; (4) that when the lease in question was made the president of the plaintiff corporation, with whom such contract was negotiated, knew that said elevator pit was defective and in a dangerous condition, so that it would fill with water and injure the wheat therein; (5) that the defendants did sustain damage from wheat becoming wet in the elevator pit in the sum of $232.50; (6) that the defendants, when they paid their rent under the lease on August 14, 1902, and the following months thereafter to February 15, 1903, did have knowledge of the defective condition of the elevator pit (answered by the court); (7) that the defendants did surrender to the plaintiff, and the plaintiff did take full and exclusive possession of, the leased premises, and accept such surrender, except as authorized by the lease; (8) that the plaintiff did take such exclusive possession immediately; (9) that the use of the mill as a mill was materially lessened by reason of such condition, when operated with...

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9 cases
  • Von Schleinitz v. North Hotel Co.
    • United States
    • Missouri Supreme Court
    • October 14, 1929
    ... ... 230; Tracy v. Thum, 267 P. 398, 125 Ore. 323; In ... re Frey, 26 F.2d 472; West Concord Mill Co. v ... Hosmer, 129 Wis. 8; Palmer v. Meyers, 79 ... Ill.App. 409; Armour & Co. v ... ...
  • Von Schleinitz v. North Hotel Co.
    • United States
    • Missouri Supreme Court
    • October 14, 1929
    ...Bernard v. Renard, 165 Pac. 694, 175 Cal. 230; Tracy v. Thum, 267 Pac. 398, 125 Ore. 323; In re Frey, 26 Fed. (2d) 472; West Concord Mill Co. v. Hosmer, 129 Wis. 8; Palmer v. Meyers, 79 Ill. App. 409; Armour & Co. v. Pack. Co., 116 Iowa, 723; 45th East Fifty-Seventh St. Co. v. Millar, 212 N......
  • First Wisconsin Trust Co. v. L. Wiemann Co., 77-089
    • United States
    • Wisconsin Supreme Court
    • February 13, 1980
    ...Fassett, supra, 253 Wis. at 104, 33 N.W.2d 230; Mahonna v. Chaimson, 214 Wis. 396, 400, 253 N.W. 391 (1934); West Concord Milling Co. v. Hosmer, 129 Wis. 8, 13, 107 N.W. 12 (1906). In Anderson v. Andy Darling Pontiac, Inc., 257 Wis. 371, 43 N.W.2d 362 (1950), after the lessee vacated the pr......
  • Ross v. Smigelski
    • United States
    • Wisconsin Supreme Court
    • April 1, 1969
    ...terminates an abandoned lease from the moment it is begun. In support of his position the defendant cites West Concord Milling Co. v. Hosmer (1906), 129 Wis. 8, 13, 107 N.W. 12, 14: '* * * This court has held that 'if before the expiration of the term the lessee offers to surrender the leas......
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