Molter v. Spencer

180 N.W. 261, 173 Wis. 38, 1920 Wisc. LEXIS 293

• Court: Wisconsin Supreme Court
• Decided: December 14, 1920
• Status: Published

Opinion

Rosenberry, J.

It is not disputed that the tenancy was a tenancy from month to month and could be terminated only in the manner prescribed by law for the termination of such tenancies. Sec. 2183, Stats. The defendant endeavors to draw a distinction between tenancies at will and sufferance and periodic tenancies. While a tenancy at will or at sufferance was, at common law, a different thing than a periodic tenancy, our statute requiring the landlord to give notice in writing has operated to remove the distinction between the two tenancies, and the words “tenancy at will,” used in sec. 2183, include periodic tenancies. Sutherland v. Drolet, 154 Wis. 619, 143 N. W. 663. This court is committed to the proposition that a' month’s notice, in order to terminate the tenancy, must expire at the end of the rent month. Sutherland v. Drolet, supra. The end of the rent month in this case was the 24th day of March for the month which began on the 25th day of February. The 25th day of March was the first day of the new period. Was this a sufficient notice ?

Having, in Sutherland v. Drolet, held that the notice may not terminate the tenancy in the middle of the rent month, it follows logically that it may not terminate it on any day of the rent month except the last. In that respect there is logically no distinction between the first day and the fifteenth day, or any other day. Hence, the tenancy could not be terminated on the 25th day of March. Did the tenant in this case have one month’s (calendar month, sub. (10), sec. 4971, Stats.) notice of the landlord’s election to terminate the lease prior to the, end of the rent month ?

What is meant by “one month’s notice in writing?” In Minard v. Burtis, 83 Wis. 267, 53 N. W. 509, it was said:

“If given the proper number of days before action brought, as contained in the calendar month in which it [notice] was given, as in this-case, it was sufficient.”

In 1919 there were twenty-eight days in the calendar month of February, the month in which the notice was given. Excluding the 25th day of February (sub. (24), sec. 4971, Stats.), the day on which the notice was served, and including the 24th day of March, the last- day of the rent-paying month, the tenant had but twenty-seven days’ notice. Therefore the notice lacked one day of being a one month’s notice within the meaning of the statute as construed by this court. If the notice had been given one calendar month prior to the last day of the rent month, we do not determine in this case the effect of requiring the tenant, by the terms of the notice, to remové on the first day of a new term. '

By the Court. — Judgment reversed, with directions to dismiss the complaint on the merits.