#### Orton vs. Noonan *&*McNab.

*Pleading. —Reply to counterclaim. —Effect of demwrrer thereto.*

1. Dixon, O. J., adheres to the opinion that the lease to defendants on which the action is founded, is a demise for a future term of ninety-nine years, to take effect at the expiration of the term first limited, on due notice that the lessees so elected, and that plaintiff (the assignee of the reversión, in possession when the original term expired) is not bound to execute any new lease. He therefore declines to express any opinion as to what covenants such new lease, if given, should contain. [See 27 Wis., 272, 300.]

Cole, J., adheres to the view that said lease was a demise for the term first limited only, and that plaintiff should be adjudged to execute a new lease for ninety-nine years with the same covenants as in the former lease (except that for a renewal); but that such covenants should be so framed as to bind him personally only while he retained title to the premises. [27 Wis., 300.]

Lyon, J., having tried the cause once at the circuit, declines to express any opinion as to whether a new lease should be required, or if so, what covenants it should contain.

2. If plaintiff was not bound to renew the lease, defendants’ counterclaim of damages for his refusal to do so is bad; if he was bound to renew with covenants binding him only while he held the title, his reply that on, etc., he had conveyed the premises, is good, as affecting the damages. In either case defendants cannot object to an order overruling their demurrer to the reply.

APPEAL from tbe County Court of *Milwaukee*County.

The complaint in this action is stated in the report of a decision of this court upon a former appeal herein. 27 Wis., 272-275. After that decision was rendered, and the cause remitted to the Milwaukee circuit court, the place of trial was changed to the county court of the same county; and there the defendants filed a further and amended answer, which, among other things, set up a counterclaim for damages to the amount of $45,000, alleged to have accrued to defendants from the plaintiff’s refusal to execute a new lease to them for the term of *298ninety-nine years from tbe 8th of January, 1855, in acoordance with the covenants of their former lease. The plaintiff: filed a reply, alleging that on the 5th or 6th of April, 1866, he sold and conveyed to one D. 0. Mason the water power, land and dam mentioned in the original lease to defendants. The defendants demurred to this reply as not stating a valid defense against the counterclaim above described. The court overruled the demurrer; and the defendants appealed from the order.

*J. Downer,*for appellants,

contended : 1. That by the terms of the original lease, plaintiff, as assignee of the reversion, in possession when the term first limited in the lease expired, were bound to execute a new lease with the covenants of the former, except that to renew.* 2. That plaintiff is liable for all damages for a refusal to renew, the same as the original lessors would have been, if, owning the premises when the former term expired, they had refused to renew. He not only refuses to renew himself, but thereby prevents the tenant or his assignee from enforcing a renewal against any subsequent owner of the reversion. No suit for damages can be maintained by the lessees against *Orton’s*assignee; and certainly no action for a renewal of the lease, unless *he*has first renewed it, even under the opinion of Mr. Justice Cole. If, then, full damages cannot be recovered from Orton, they cannot be recovered from any one, unless the lessees go back to the original lessors ; and no more damages could be recovered against them than against *Orton. Taylor v. Stiblert,*2 Yes., Jr., 437; *Furnival v. Grew,*3 Atk., 83; *Farl Brook v. Bulkehy,*2 Yes., Sr., 497 ; *Piggotv. Mason,*1 Paige, 412 ; 1 Platt on Leases, 732, 740, 741.

*John J. Orton,*respondent, in person.

*

The argument of counsel on this point will bo found somewhat fully reported in 27 Wis., BIS-326. — Rep.

The following opinion was filed at the January term, 1872.

LyoN, J.

This action is to recover certain rents, which the plaintiff claims are due to him from the defendants by virtue *299of tbe covenants contained in a certain lease executed by tbe assignors of tbe plaintiff to tbe defendants. This lease bas occasionally been before this court during tbe last sixteen years, and is fully set out in tbe opinion delivered by tbe late Chief Justice Whiton in the case of *Noonan & McNab v. Orton,*4 Wis., *335.*Tbat action was brought to compel *Orton*to extend such lease for ninety-nine years, pursuant to one of tbe covenants contained in it. It bas made its appearance in this court several times during its progress, and is still pending, for some purposes at least, in tbe circuit court for Eacine county, to which it was removed many years ago from tbe circuit court for Milwaukee county. Tbe cause was brought to a bearing in the Eacine circuit court a few years ago, and tbe plaintiffs, *Noonan &*McNab, obtained judgment tbat *Orton*extend the lease for tbe specified term by executing a lease for such term containing tbe same covenants-which are contained in tbe original lease, to wit: to raise tbe dam to tbe height of sixteen feet, and during tbe continuance of such lease to keep tbe dam and flume conveying water to tbe mill of *Noonan & McNab,*in good repair.

An appeal was taken by *Orton*from tbat judgment, and tbe decision thereof developed a radical difference of opinion between tbe chief justice and Mr. Justice Cole relative to tbe rights and obligations of tbe parties. They concurred, however, in reversing tbe judgment of the circuit court. Tbe late Mr. Justice PAINE, who was then a member of this court, having been of counsel in tbe case at some period during its history, took no part in tbe decision.

The opinions of tbe chief justice and of Justice Cole will be found in tbe 27 Wis., 277, 294, 309. By reference thereto it will be seen tbat the former bolds tbat tbe lease was extended for ninety-nine yearn by tbe act of giving notice tbat tbe lessees elected to have tbe same extended; tbat no new lease was necessary ; and that *Orton*should not be compelled to execute one; while, on tbe other band, tbe latter bolds tbat *Orton*should be com*300pelled to extend such lease, but with qualified covenants restricting his obligation in respect to the dam and flume to the time during which he should remain the owner of the demised premises and property.

In this action the defendants interposed a counterclaim for damages for a breach of the covenant to extend or renew the lease, to which the plaintiff replied that in April, 1866, he sold and conveyed said water power, land and dam in said lease mentioned, to one D. C. Mason, and’ has had no possession or title thereto since that time. The defendants demurred to such reply, and assigned for ground of demurrer that the reply did not state facts sufficient to constitute a valid defense to such counterclaim.

From an order of the county court overruling such demurrer, the defendants appeal to this court.

I. It is perfectly apparent that if the views of the chief justice are correct, the counterclaim of "the defendants fails to state a cause of action. If *Orton*is under no obligation to renew the lease, then of course the lessees can have no right of action against him for failing to do so. In such case the demurrer to the reply might well have been sustained as a demurrer to the counterclaim. But instead of doing so, the court overruled the demurrer. The defendants cannot be heard to object that their own pleading should have been held invalid.

II. If the views of Mr. Justice Cole ought to prevail, the counterclaim contains a good cause of action, and the defendants are entitled to recover damages for the breach of the covenant to extend or renew the lease. The measure of damages in that case would probably be the value of the lease, although, under some of the authorities, there may be room for doubt whether, *before*eviction, this is the correct rule. For the purposes of this appeal, however, we will assume it to be so. Conceding, then, that the defendants must be allowed the value of the renewed or extended lease as damages for the plaintiff’s breach of the covenant to execute the same, it seems *301obvious that sucb value must depend somewhat upon tbe covenants contained in it. A lease of 2,000 cubic inches of water under a head of sixteen feet, for ninety-nine years, containing the personal covenant of the plaintiff to maintain the dam at that height and to keep the dam and the flume which con • ducted the water to the mill of the defendants in repair during the whole term, is certainly more valuable than it would be were such personal covenants restricted to such time as the plaintiff might remain the owner of the demised premises and property. The personal covenant of the plaintiff in such case has a money value, which necessarily enhances the value of the lease, and the time which those covenants are to run is an important element to be considered in ascertaining such value. Hence, the plaintiff may properly plead and prove when his personal liability on the covenants ceased, in order to reduce damages.

Upon this theory, therefore, the reply was well pleaded, and the demurrer thereto properly overruled.

IH. W e are strongly urged by the counsel for the defendants to give a decision construing definitely the covenant to extend the lease, so that the parties may know their rights and obligations in this respect, when the action shall be tried. This request appears reasonable, and were it not for certain special circumstances, which will presently be mentioned, we should doubtless comply with it.

It is apparent, in view of the difference of opinion before mentioned, that if this covenant is construed by this court as now constituted, I must act as umpire between my brethren, and thus, in a certain sense, assume the responsibility of deciding the question involved. Under ordinary circumstances I "should not shrink from this, or any other official duty. But it is proper to state that the judgment in the circuit court for Racine county, mentioned in the foregoing statement of facts, was rendered by me when I presided in that court. By that judgment, and the findings of fact and law upon which it was based, I gave a construction to this covenant to extend the *302lease, wbicb construction was substantially different from that given to it by either of my brethren. It is trae that I supposed until recently that such judgment was rendered *pro*forma, for the purpose of getting the case to the supreme court in order to obtain an authoritative construction of this covenant of the lease. Until some time after the judgment was rendered, such was my recollection of the fact. But I find with the record, which comes here on an. appeal from an order in the case pending in the Racine circuit court, an affidavit made by the counsel for the defendants, to the effect that his recollection is that the judgment was not rendered *pro*forma, but that the facts and law were, to some extent at least, considered by me. I freely concede that the counsel would be more likely to recollect the facts correctly than I would ; and I do not hesitate to adopt his statement as the correct one, although different from my former recollection of those transactions.

The fact being conceded that I rendered that judgment upon some deliberation, and not entirely *pro*forma, it becomes a very serious question whether I am not disqualified to take part in this court in deciding the same matters which I decided in the court below.

Sec. 22, ch. 119 of the revised statutes, is as follows: “ No judge of an appellate court, or of any court to which a writ of *certiorari*or of error shall- be returnable,’ shall decide or take part in the decision of any cause *or matter*which shall have been determined by him while sitting as a judge of any other court, unless there shall not be a quorum without him.”

I must be permitted to satisfy myself fully that this statute does not disqualify me from giving a construction to the covenants of the lease, before I can consent to assume so grave a responsibility.

*By the*Court.— Order affirmed.

A motion by the appellants for a rehearing was denied, and the following opinion filed, at the June term, 1872.

*303Dixok, C. J.

I have read and carefully considered tbe arguments of tbe learned counsel for tbe defendants, as well tbat bere made in support of tbe motion for a rebearing as those formerly presented on other appeals, and especially *those*parts of them addressed to myself for tbe purpose of showing tbat I am wrong in tbe construction I have put upon the lease with respect to tbe alleged covenant on tbe part of the lessors, their representatives, etc., to execute and deliver a *new*lease at tbe expiration of tbe first four years, or to make, sign and deliver a memorandum or contract in writing *renewing*tbe same lease for tbe extended term, when tbe lessees gave notice of their election to bold for such term. Suffice it to say I am not yet convinced I am in error, but am of tbe same opinion still. I still think no new lease or renewal in writing of tbe existing lease was contemplated or required. My reasons for this conclusion, and the authorities supporting it (which last are in my judgment very clear and strong, and of which none to tbe contrary have since been found or cited by counsel), will appear from a perusal of tbe opinion in 27 Wis. R., commencing on page 277. To those reasons and authorities there are no others which I now desire to add, and it occurs to me, after repeated re-arguments, tbat there are none of them which I would modify or take away. I trust it is with proper feelings of delicacy and reserve, and not without that respect which is due to the opinions and judgment of others, that I still adhere to tbe views there expressed. I trust likewise it will not be regarded that I do so from any motives of obstinacy or over-self-estimation, but that it is from thorough and well grounded convictions of truth, according to the best of my ability to see and understand it

But, adhering to my former views, or if I should do so, the learned counsel for the defendants asks me to go farther in this case, and to express an opinion upon a question which, according to those views, I do not consider to be at all involved in it. Mr. Justice Coins, differing with me upon the question whether *304tbe mating and delivery of a new lease for tbe ninety-nine years was required or not, bolds tbat it was, but at tbe same time bolds tbat sucb new lease, if executed by tbe assignee of tbe lessors or tbeir grantee of tbe reversion, to wit, tbe plaintiff, wbo beld and owned tbe estate by conveyance from tbe lessors at tbe time tbe same should have been executed, should only contain covenants *personally*binding tbe lessor therein, bis heirs and personal representatives, *during the time he or they should continue to hold the*estate, and *not*after a conveyance of the estate by him or them. 27 Wis., page 310 and following. Upon this last question tbe learned counsel is as decidedly at variance with Mr. Justice Cole, as be is with me upon the former. He maintains and argues on this motion, and has heretofore argued with great force and ability (27 Wis., 318-324), tbat Mr.'Justice Cole is in error in bis conclusion as to tbe nature of tbe covenants to be inserted in tbe new lease; bis position in tbis respect being, tbat tbe plaintiff, as tbe assignee and bolder of tbe estate or fee of tbe land at tbe time the lease should have been renewed, stood in tbe place of tbe original lessors, and was bound to execute tbe same bind of a lease, with tbe same covenants, or, as one of tbe authorities expresses it, *“*to execute a new lease specifying tbe covenants in tbe former *in totidem*verbis,” tbe same as tbe original lessors would have been required to do, bad they not parted with tbe estate. With these differences existing between Mr. Justice Cole and myself, and between myself and counsel, and between Mr. Justice Cole and counsel, and while Mr. Justice Lyon declines, for reasons stated in bis opinion, to decide between us, counsel asks me to pass beyond all questions which I conceive to be in tbe case, and to express an opinion upon one which I regard as entirely out of it. It has not yet been decided by this court tbat a new lease was required, and, for aught I know, may never be.

When Mr. Justice Lyon concludes, as be may perhaps do, to take part in tbe decision of tbe question upon which Mr. *305Justice Cole and I differ, and concurs with Mr. Justice Cole, in case be should so concur, or when it is otherwise decided by a majority of the court that a new lease was required, it may then become my duty, should it be my fortune to be still sitting here, to express an opinion upon this important question. At present, however, I do not conceive such to be my duty at all, but quite the contrary; especially when I take into consideration the reasons advanced by counsel for my so doing. Counsel, concurring with Mr. Justice Cole that a new lease was required, but disagreeing with him as to the nature of the covenants to be inserted in it, says that both the learned judges of the courts below in which these actions (this and other similar actions between the same parties, growing out of the same lease) are depending, namely, the judge of the county court of Milwaukee county and the judge of the circuit court of the first judicial circuit, agree also with Mr. Justice Cole upon the first proposition, or that the execution of a new lease was intended. Counsel urges the opinions of those two learned judges, for whom I entertain the greatest respect, as strong evidence that I am in error in the view I have taken of the same question, and that I should change it. But counsel further says that those learned judges, having adopted Mr. Justice Cole’s view of that question, may also adopt his view of the other, which counsel regards as erroneous; and, hoping that I may disagree with Mr. Justice Cole upon that as upon the first question, he insists that I shall give an opinion, so that he may use it in the courts below as a counterpoise to the opinion of Mr. Justice Cole, or as a kind of antidote for the mischief or evil which he anticipates may arise from what he considers Mr. Justice Cole’s error. I cannot consent to travel out of the case on any such errand; and besides, counsel greatly discourages me when he says that those learned judges so readily rejected my view of the first question, and the reasons which I attempted to give in support of it. The remarks of the learned counsel upon this motion for re-argument, as well *306as in other arguments of the same questions' heretofore made, lead me greatly to doubt whether I could be of any service to biin, or would not bring weakness rather than strength to his side of the question, should I embrace and endeavor to support his views.

In every light in which the question presents itself to my mind, therefore, it seems clear that I ought not at this time to express any opinion upon it; and I must decline to do so.

*By the Court.*— The motion for a rehearing is denied upon grounds stated in the original opinion.