Opinion
February 4, 1958 —
February 28, 1958.
APPEAL from a judgment of the circuit court for Fond du Lac county: RUSSELL E. HANSON, Circuit Judge. Affirmed.
For the appellant the cause was submitted on the brief of Ervin A. Weinke of Fond du Lac.
For the respondents there was a brief by Worthing Calhoun of Fond du Lac, and oral argument by J. W. Calhoun.
On May 15, 1957, George D. Rottman, Sr., and his wife brought an unlawful-detainer action in the municipal court of Fond du Lac county against Bluebird Bakery, Inc. The judgment was that defendant was guilty of unlawfully detaining and plaintiffs entitled to possession of the premises, and that a writ of restitution be issued. Defendant appealed to the circuit court and, on July 3, 1957, the circuit court affirmed the judgment of the municipal court. Defendant appealed.
On January 1, 1947, plaintiffs and defendant entered into a written lease of the premises involved. The term was three years, with an option to renew for a like period. Defendant exercised its option and the renewed term expired at the close of 1952. Defendant continued in possession and paid the same monthly rent it had paid while the lease was in effect.
In May, 1953, Mr. Varhola, president of defendant, had a new lease, similar to the old, drawn up and presented it to plaintiffs. Plaintiffs would not sign. Varhola testified that Rottman had previously said they would enter into a similar lease, but Rottman testified to the contrary. When Rottman refused to sign the lease he told Varhola plaintiffs wanted to sell the building. The parties discussed a sale to defendant, but never agreed upon any price. Varhola said that he was concerned about a lease because he had two years to pay on his equipment. Varhola testified that Rottman told him that if plaintiffs sold the building they would give defendant six months to vacate. Rottman testified that he had never promised six months, but said that if plaintiffs took defendant to court it would be about six months anyhow.
Defendant continued in possession and paid rent each month. In January, 1957, plaintiffs informed Varhola the rent would be increased March 1st. Mr. Varhola declined to pay the increased rent and Rottman testified Varhola said he would probably go out of the bakery business. On March 11th, plaintiffs agreed to sell the premises to a third party. On March 18th, they served notice on defendant, demanding that it vacate May 1st. Defendant refused.
The municipal court made no findings, but stated in a written decision that it appeared plaintiffs did not desire to enter into a lease; "that the defendant was well aware of this;" that a month-to-month tenancy resulted and was properly terminated. The court did not resolve the conflict in testimony as to the six months' period in the event of sale but concluded there was no consideration for such promise in any event and that it would be void in 1957 because not in writing.
The circuit court concluded that the evidence warranted the finding by the municipal court that defendant occupied the premises from month to month rather than from year to year, and stated it was satisfied that no valid agreement resulted from the conversation about six months' time to move.
Two question are involved: (1) Did the acceptance of rent amount to an election by plaintiffs to consider defendant a tenant from year to year? (2) Was there a valid agreement that defendant should have six months in which to move in the event of sale? If either be answered in the affirmative, the tenancy was not terminated and the judgment must be reversed.
(1) Holding over and acceptance of rent. Sec. 234.07, Stats., provides: "If a tenant for a year or more shall hold over after the expiration of his term he may, at the election of his landlord, be considered a tenant from year to year upon the terms of the original lease." Holding over and payment and acceptance of rent raise a rebuttable presumption that the landlord has elected to consider the tenancy from year to year. Hog v. Johnson (1932), 209 Wis. 581, 583, 245 N.W. 650. The presumption may be rebutted by proof of an express agreement for a month-to-month tenancy as in Hog v. Johnson or by other circumstances. The fact that when the landlord accepted the rent the parties were negotiating for a new lease or a sale to the tenant tends to rebut it. See 51 C. J. S., Landlord and Tenant, p. 738, sec. 136. Here there was some discussion of a new lease, some consideration of sale to defendant, and discussion, at least, as to the speed with which defendant would be forced to move if the property were sold to another. Mr. Varhola conceded that he knew the property was for sale and considered that a sale would put him in a "spot." The evidence presented a question of fact as to whether there was an election by plaintiffs to hold defendant from year to year. It is apparent from the decision filed that the court found that no such election had been made and there is evidence to support the finding.
(2) The "six months" conversation. The municipal court made no finding as to whether Rottman promised that plaintiffs would give defendant six months to remove in the event of sale, or whether Rottman merely estimated that defendant could delay removal for six months if defendant forced plaintiffs to take the matter to court. Varhola made no claim that defendant gave up its right to terminate at the end of any month by giving thirty days' notice nor that plaintiffs gave up their corresponding right if they desired to terminate for any reason except sale of the property. Defendant gave up nothing. It was already in the premises and it was to its advantage to stay. Probably Varhola thought he could stay in the premises as long as he cared to unless it was sold and then he would have six months in which to remove. Under the circumstances we are of the opinion that defendant has not sufficiently met its burden of proof to establish a contractual modification of the statutory method of terminating a month-to-month tenancy.
By the Court. — Judgment affirmed.