Ullman v. Bee Hive Department Store

214 N.W. 349, 193 Wis. 350, 53 A.L.R. 281, 1927 Wisc. LEXIS 279

• Court: Wisconsin Supreme Court
• Decided: June 20, 1927
• Status: Published

Opinions

Rosenberry, J.

It is the contention of the defendant company that L. D. Hoffman was not authorized to execute the contract of November 3, 1925, on behalf of the Bee Hive Department Store. It appears without dispute that L. D. Hoffman was the secretary and treasurer and manager of the store business at Wausau and that he and his wife were the only officers of the corporation who resided in Wisconsin. It is apparent from a perusal of the lease that it was within the scope and purpose of the corporation to procure the lease because for that reason an option was included in the original lease of August 28, 1925. Manifestly, the business could not be conducted until some store building was purchased or leased for that purpose.

The finding of the trial court that L. D. Hoffman was authorized to execute the agreement of November 3d both as a matter of law and of fact is amply sustained.

It is next contended that the contract of November 3d is not enforceable for lack of mutuality. While this contention is phrased in the language of the books, the real basis of the contention is that the contract of November 3d lacked consideration because, no other consideration having been recited, there is not stated in express terms any promise on the part of the lessor to make and execute the lease. We shall not attempt to discuss the doctrine of mutuality in contracts.

As pointed out by the text-writers (see 1 Page, Contracts (2d ed.) § 565; 1 Williston, Contracts, § 140; 3 Williston, Contracts, § 1434 et seq.), a clear distinction must be drawn between mutual promises as consideration sufficient to sustain a contract and mutuality as that term is used in the law of contracts relating to specific performance. While the two propositions rest upon entirely different bases, the one is frequently mistaken for the other.

In Pope v. Thompson, 171 Wis. 468, 177 N. W. 607, the promise there relied upon as consideration is held to be too indefinite and uncertain to impose any obligation upon the promisor and therefore did not constitute consideration for the promise of the other party.

American S. L. Co. v. Riverside P. Co. 171 Wis. 644, 177 N. W. 852, on the other hand, is an example of a case in which the promise relied upon as consideration was sufficiently definite and certain to be enforceable and was therefore a valid consideration for the promise of the other party.

However, it is a well established rule that whenever the accepted proposition or contract is for the sale or delivery of a specific article or number of articles, or a specific amount of service or materials, or where, by the terms of the contract, the number of such articles, or the amount of such service or materials, is ascertainable, a promise of the other party may be implied, though not expressed in the contract, and hence the engagements are mutual.” Hoffman v. Maffioli, 104 Wis. 630, 637, 80 N. W. 1032. See 6 Ruling Case Law, p. 689, § 95. This rule, which constitutes an exception to the general rule, is applicable to contracts for a lease. 35 Corp. Jur. p. 1201, § 519, “Landlord and Tenant.” See, also, 1 Page, Contracts (2d ed.) § 583; 1 Williston, Contracts, § 140

Here there could be no performance by the defendant company unless the plaintiff also performed. Under such circumstances an agreement by the owner to enter into a lease will be implied. This implied obligation is just as effective and enforceable as though it were expressed in the writing in words and is a sufficient consideration for the promise of the defendant company. The contract was therefore valid and enforceable.

It is next contended that there is no evidence to support the award of damages made by the trial court. There is no doubt that the rule of damages laid down in Strimple v. Parker Pen Co. 177 Wis. 111, 187 N. W. 1001, is the true rule. The court, however, in ascertaining the damages limited them to the amount of the rent for eight months, the period the premises were vacant, at $550 per month. While the court in the computation as indicated in the record did not follow the language of the rule, there is abundant evidence in the record to sustain the conclusion reached. The testimony of expert witnesses shows that in view of the agreement contained in the contract for a lease that the lessees were to make all of their own repairs, the rental value of the premises under such a lease would be $550 per month. The loss incurred by the plaintiff by reason of the defendants’ breach of contract would amount to a sum largely in excess of the amount actually allowed by the court, and under such circumstances there is no prejudicial error. Kneeland-McLurg L. Co. v. Lillie, 156 Wis. 428, 145 N. W. 1093.

As against the defendants Segal, the court found that by reason of their neglect to properly care for the premises plaintiff had sustained damages to the heating plant in the sum of $350, and judgment was entered accordingly. This finding is also attacked by appellants. No useful purpose will be served by a recital of the evidence. There can be no dispute that the plant was very materially injured, and the finding of the trial court as to the amount of damages due to the neglect of the defendants Segal is amply sustained by the evidence.

By the Court. — Judgment affirmed.