Malick v. Kellogg

95 N.W. 372, 118 Wis. 405, 1903 Wisc. LEXIS 43

• Court: Wisconsin Supreme Court
• Decided: June 18, 1903
• Status: Published

Opinion

Winslow, J.

While the answer contains no specific admissions that the defendants are in possession of the demised premises, and while it does contain a denial of all allegations of the complaint not therein admitted, we think that, applying reasonable rules of construction, its allegations must be construed as admitting possession of the premises. The making of the lease is admitted, and the defense is based, not on the ground that possession was not delivered, hut on the sole ground that the plaintiff has failed to perform certain agreements or conditions which were to be performed after possession was taken, by reason of which it is alleged that the payment of rent has been excused or rendered impossible. The allegation that no rent is due is evidently but a legal conclusion from the previous facts stated. When a fact is admitted by clear and necessary implication from other facts expressly stated in the pleading, the admission so made is as effective as though it were expressly stated, and will not be overcome by a mere general denial. Miller v. Larson, 17 Wis. 624.

The fact of possession of the leased premises being admitted, the question is whether the failure of the plaintiff to perform his agreements constitutes a defense. The farm leased was several hundred acres in extent, and was evidently leased for dairying purposes. The plaintiff agreed to build a creamery, to provide pasture for 100 head of cattle, and cleared land enough to feed the same, not less than 100 acres, and to build a silo sufficient to provide ensilage for said cattle. It seems to us very plain that these agreements were all expected to be performed upon the leased premises, and after the defendants took possession.' The claim that the agreement means that the plaintiff was to provide an additional hundred acres of cleared land for pasturage is untenable; we find nothing in the agreement that indicates such an intention. It is unreasonable to suppose that it was the intention to make so large and material an increase in the leasehold estate without describing or locating the land so to be added, or indicating in any clear way that such was the purpose. It is not a case, therefore, of failure to put the tenant in possession of the leased premises, nor of eviction of the tenant from any part of the premises, but simply a ease where the landlord has failed to perform his agreement to make certain improvements upon the premises after the tenant takes possession. It cannot he distinguished from a covenant to make repairs during the term. Such an agreement is uniformly held an independent agreement, and not one upon which the right to demand rent depends. Peterson v. Kreuger, 67 Minn. 449, 70 N. W. 567; Phillips v. Port Townsend, 8 Wash. 529, 36 Pac. 476; Wood, Landlord & T. (2d ed.) 1132, 1133. Were this an action to recover the rent, and were the landlord’s -breach pleaded as a counterclaim, the question would be entirely different. The demurrer was rightly sustained.

By the Court. — Order affirmed.