Gimbel Bros. v. Tolman

154 N.W. 628, 161 Wis. 382, 1915 Wisc. LEXIS 219

• Court: Wisconsin Supreme Court
• Decided: October 26, 1915
• Status: Published

Opinion

Siebecker, J.

By tbe lease in question tbe defendant Tolman and wife leased tbe premises owned by Tolman in tbe northeast quarter of block 69 pursuant to tbe recorded plat and tbe description thereof in tbe conveyances by which Tolman acquired title. Tbe court found that tbe parties to tbe lease believed and understood that tbe occupation and use of tbe northeast quarter of this block, with respect to street and lot lines, conformed to tbe measurements as shown by tbe recorded plat, and that tbe distance from tbe boundary line between Grand avenue and tbe ground occupied by tbe Matthews building to tbe dividing line between tbe southerly wall of tbe Davidson Theater Annex building and tbe ten-foot passageway adjacent thereto was 205 feet, and that tbe distance from tbe boundary line between Third street and tbe lands abutting thereon as occupied by buildings in tbe northeast quarter of this block to tbe center line of tbe north and south alley as platted and subsequently vacated was 160 feet; and that tbe parties understood said dimensions embraced and correctly described tbe northeast quarter of block 69; that tbe parties to this lease intended and understood that tbe description set forth-in this lease was to-cover and include all of tbe premises owned by tbe lessor, Tolman, in tbe northeast quarter of this block, excepting the-part known as tbe Matthews building. Tbe evidence abundantly sustains these findings of fact. It is without dispute that tbe description in tbe lease does not correctly describe-tbe premises tbe lessor Tolman owned in tbe northeast quarter of block 69, which tbe parties intended to cover and include in tbe lease. That Mr. Smith, tbe original lessee’s-representative, believed and understood that tbe lease in question was to cover and include all of tbe property Tolman-owned in tbe northeast quarter of this block, is clearly infer-able from tbe facts and circumstances shown by tbe evidence. It is manifest from tbe transaction between Smith and Tolr man that they both contemplated and intended that tbe-courses and distances embraced in tbe description in tbe lease included all tbe property Tolman owned in tbis quarter of tbe block A potent and convincing undisputed fact, wbicb supports tbe court’s conclusions upon tbe evidence, is tbe entry and occupancy by tbe plaintiffs under tbe lease of tbe premises embraced in tbe corrected description. Tbis entry and occupancy of tbe premises was witb defendants’ consent and bas continued to tbe present time. It seems clear that tbe parties made a mutual mistake in describing tbe premises intended to be included in tbe lease.

Tbe postponement by tbe plaintiffs to institute an action for the correction of tbe misdescription did not operate to tbe prejudice of innocent parties, and is barren of tbe element of laches so far as tbe defendants are concerned. Schuster v. Milwaukee E. R. & L. Co. 142 Wis. 578, 126 N. W. 26; Ludington v. Palton, 111 Wis. 208, 86 N. W. 571.

Nor can laches be imputed to plaintiffs under tbe circumstances showing that they have been in peaceable possession of tbe disputed premises witb tbe defendants’ consent. Schroder v. Smith, 249 Ill. 574, 94 N. E. 969; Wykle v. Bartholomew, 258 Ill. 358, 101 N. E. 597; Carr v. Burris, 148 Ky. 232, 146 S. W. 424.

Tbe court properly awarded judgment for reformation of tbe description contained in tbe lease.

By the Court. — Tbe judgment appealed from is affirmed.