Opinion
May 19, 1943. —
June 16, 1943.
APPEALS from an order and judgments of the circuit court for Milwaukee county: GUSTAVE G. GEHRZ, Circuit Judge. Affirmed.
For the appellant there were briefs by Benjamin F. Saltzstein, attorney, and Howard G. Brown of counsel, both of Milwaukee, and oral argument by Mr. Brown.
For the respondents there was a brief by Hersh Morse of Milwaukee, and oral argument by Emil Hersh.
Action commenced May 26, 1942, by Walter G. Nauman against the Central Shorewood Building Corporation, Matthew R. Derzon, John Ruppa, Samuel M. Kaufman, the Richter Company, Theo. Richter, Jr., and Paul Schaaf. From judgments for the defendants, the plaintiff appeals.
Plaintiff leased a portion of the property of the Central Shorewood Building Corporation at $150 per month. The lease which ran until May 31, 1942, provided that the lessee should have an option for renewal for five years "at a rental to be equal to that offered by any other bona fide prospective tenant." It further provided that the lessor was to notify the lessee of any offer made by a bona fide prospective tenant in writing within six months before the expiration of the present term, and that the lessee was to notify the lessor within thirty days if he desired to renew. The lease stated that in any event the rent was not to be less than $150.
In the fail of 1941 the lessor corresponded with the defendant Kaufman, a broker, concerning the possibility that a client of Kaufman might rent the building then occupied by the plaintiff. The terms proposed included a five-year lease at $3,000 for the first year, $3,600 for each of the next two years, and $4,200 for each of the last two years. Notice of this offer was sent to the plaintiff by the lessor by registered mail. The plaintiff requested that a copy of the offer be sent to him. The lessor replied that the lessee had been informed of all of the terms of the offer, that the offer was made through a broker who refused to disclose the name of his client. From that time on, the plaintiff took the position that he was entitled to renew his lease for five years on the same terms as his present lease, while the lessor insisted that the lessee notify him if he would meet the terms of the other offer. Later it was disclosed that Kaufman's client was the Richter Company of which defendants Schaaf and Richter were officers. This company did make a lease with the lessor and did enter into possession after the plaintiff vacated the premises. The plaintiff moved out by December 31, 1942, and the new tenant took possession as of the first of the year.
The plaintiff began proceedings for, (1) declaratory relief; (2) injunctive relief; (3) specific performance. At the outset a temporary injunction was issued restraining the defendants from interfering with the plaintiff's possession of the leased premises pendente lite. Judgment was entered on November 30, 1942, dismissing the plaintiff's complaint and dissolving the temporary injunction. Subsequently, on an order to show cause, the plaintiff was enjoined from terminating subleases of safety-deposit boxes and the bond to stay execution was set at $5,000. Finally judgment was entered March 30, 1943, fixing the amount of the lessor's damages, including $700 for the period during which the lessee retained the premises and thus interfered with the lessor or the new tenant taking possession, and $300 as a reasonable allowance for attorneys' fees in connection with securing the dissolution of the temporary injunction and the assessment of damages arising therefrom.
The dispute in question arose concerning the terms under which the appellant had a right to renew his lease. The decision of the trial court was contained in an order and two judgments which we shall take up separately.
The first judgment, entered November 30, 1942, dismissed the plaintiff's complaint on the merits and dissolved the temporary injunction which had restrained respondents from taking possession of the leased premises pendente lite. The finding that the lessor had received an offer from another bona fide prospective tenant was supported by the evidence. Whether the lessor exercised sound business judgment in preferring a tenant who would pay a higher rent but whose financial position was uncertain is immaterial in so far as the appellant's rights are concerned. The trial court found that appellant was given notice of the offer both before and after the date marking the beginning of the last six months of his lease but that he persisted in relying on his alleged right to renew on his own terms, basing his position apparently on the refusal of the lessor to mail him a copy of the offer of the prospective tenant. Although notified of the new offer for the premises, he did not attempt to match the competition and failed completely to exercise the right that might have been his under the contract. No useful purpose would be served here by repeating in detail the very careful findings of the trial court, all of which were amply supported by the evidence.
The order of December 21, 1942, required the lessee to furnish a bond of $5,000 to stay execution and restrained him from terminating the subleases of the safety-deposit boxes. The determination of the amount of the bond and a decision as to what relief the lessor is entitled to is peculiarly within the discretion of the trial court, and nothing in the record indicates an abuse of discretion in this case.
The judgment of March 30, 1943, assessed the damages arising from the temporary injunction, including $700 as the amount the lessor lost in rent by reason of the lessee holding over for seven months, and $300 as the reasonable value of attorneys' fees in connection with securing the dissolution of the said injunction and the assessment of damages. The evidence justified a finding that the lessor actually incurred a loss of $700 in rental, the appellant paying $100 per month less than was offered by the new tenant. As to the allowance for attorneys' fees, the trial court pointed out that he was computing it on the basis of services rendered in securing the dissolution of the temporary injunction and in assessing the damages only, in accordance with the rule laid down in Muscoda Bridge Co. v. Worden-Allen Co. 207 Wis. 22, 239 N.W. 649, 240 N.W. 802.
By the Court. — Order and judgments affirmed.