Yates v. Bachley , 33 Wis. 185 ( 1873 )

Lyon, J.

The action is for the use and occupation of certain premises in the county of Milwaukee, by the defendant, from May 1, 1869, to June 1, 1870.

It appears that the defendant owned a dwelling house on such premises, and entered into the occupation of the premises under a verbal lease from Dr. Wolcott (who then owned the same), May 1, 1868. He paid the agreed rent for pne year to Dr. Wolcott, and the latter has since conveyed the premises to the plaintiff Mrs. Yates, in whose name alone the action was originally brought. The other appellant appears here as a party only because judgment was rendered against him in the county court as surety in an appeal bond, pursuant to the statute.

The defendant alleges, and bis testimony tends to prove, that bis agreement with Dr. Wolcott was, that the latter should execute to him a written lease for the term of seven years, at the stipulated rent; that, relying upon "the due execution of such lease, the defendant made valuable improvements upon the premises, of a somewhat permanent character, a portion of which were made at th.e request of Dr. Wolcott; and that the same were made with the expectation that he, the defendant, would be permitted to occupy the premises for the full term agreed upon; that in October, 1859, and after the premises had been conveyed to Mrs. Yates, the defendant applied to her husband and agent, Col. Yates, for such lease, but he refused to execute it, and told the defendant that he wanted the land the next year for his own use; and that thereupon, in November, 1869, the defendant moved his family off the premises, but left his house standing thereon until June following, when he sold. the house to some person, and requested the plaintiffs to accept such purchaser as tenant in his place. It seems that such purchaser was so accepted as the tenant of the premises, in the place and stead of the defendant.

. The foregoing allegations were interposed as a defense to the action, and also by way of counterclaim for the value of such improvements.

The jury found for the defendant, and assessed his damages at $85 ; upon which verdict judgment was duly rendered. The plaintiffs appeal.

The only exception which we find it necessary to notice, is as follows: “ The plaintiff then and there duly excepted to the said charge to the jury, and to each and every part thereof, and to the whole thereof, and also to that part and portion thereof that charges that if the jury finds that there was a parol agreement for the lease for a term of years, and the plaintiff refused to carry out that agreement, the defendant might be allowed, by way of counterclaim, wbat improvements be put upon the premises in expectation of sucb lease.”

This exception only presents for review the portion of the charge to which it specifically relates, and is entirely inoperative as to the remainder of the charge. Eldred v. The Oconto Co., decided at the present term, and cases cited. The portion to which sufficient exception was taken is as follows: “ If you find that there was an agreement for a lease for a term of years, that the defendant went into possession under it, that the plaintiff refused to carry it out, and that defendant made improvements on the premises at the request of the plaintiff, or while so occupying the premises made improvements or did work by reason of such agreement, beyond what a tenant on such premises is bound to make or to do, then you must determine what, if anything, such improvements were reasonably worth, and give the defendant the benefit of it in making your verdict.”

This instruction is erroneous, in that it makes the plaintiff, Mrs. Yates, liable to pay for the improvements made by the defendant because she refused to execute a lease for seven years, regardless of the question whether the defendant was or was not evicted from the premises. The defendant was not so evicted. It is probable that had he surrendered possession on the intimation of Col. Yates that he intended to occupy the premises the next year, this would have been equivalent to an eviction. But he did not do so. On the contrary he retained possession until he sold the house, and then procured the consent of the plaintiff to accept the purchaser thereof as tenant of the premises in his place. There was no interference with the possession of the defendant. No case is cited in which a landlord has been held liable to pay for improvements made by a tenant under an agreement for a lease, merely because the landlord has refused to execute the lease, where the possession of the tenant has not been disturbed.

For these reasons the judgment of the county court must be reversed, and a new trial awarded.

By the Court.— So ordered.

The respondent moved for a rehearing.

JjYOW, J.

In the statement of facts made in the opinion heretofore filed in this case, it is said that Dr. "Wolcott was the owner of the premises, for the use and occupation of which this action was brought, when he leased the same to the defendant, and that he afterwards conveyed the same to the plaintiff Mrs. Yates. This is an error. Mrs. Yates was the owner at that time, and Dr. Wolcott made the contract of leasing with the defendant as her agent.

The error is, however, quite immaterial. The judgment of the county court was reversed because the judge instructed the jury, in substance and effect, that if there was an agreement for a lease for a term of years, under which the defendant went into possession of the premises, and if the plaintiff Mrs. Yates refused to carry out such agreement, that is, if she refused to execute such lease, the defendant might recover the value of certain improvements made by him on the premises, on the faith of such agreement. . We held that the mere refusal to execute the lease was not alone sufficient, but that no recovery could be had for the improvements unless the defendant had been evicted from the premises.

The most that can be successfully claimed for the defendant is, that the testimony as to whether there had been such eviction, was conflicting. Certainly there was testimony tending to show that the defendant had not been disturbed by the plaintiffs in his possession of the premises. If the testimony was conflicting on this controlling question of fact, it should have been submitted to the jury to determine the question. We still think that the judgment of the county court was properly reversed.

By the Court.— Motion denied.