June 2, 1959 —
June 26, 1959.
APPEAL from a judgment of the circuit court for Milwaukee county: ROBERT C. CANNON, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Max E. Goldsmith of Milwaukee.
For the respondent there was a brief by Michael J. Kondos, Robert R. Fenno, and Monroe N. Orman, attorneys, and Peter J. Kondos of counsel, all of Milwaukee, and oral argument by Michael J. Kondos.
Action for unlawful detainer. Judgment for the plaintiff giving him restitution of the premises. Defendant appeals.
Defendant-appellant states the facts as follows:
"On April 27, 1957, one James Groh and Joseph Shaw entered into an agreement whereby Shaw, the party of the second part and the appellant herein, subleased from Groh, the party of the first part, real-estate premises known as 3495-97 North Oakland avenue, Milwaukee, Wisconsin. The premises were to be used for the purpose of operating a service station, repair garage, and parking lot and subleased for a period of one year from May 1, 1957, to and including April 30, 1958, at a total rental of $1,500 payable at the rate of $125 per month.
"The sublease provided, among other things, as follows:
"`That the party of the second part shall purchase all petroleum products from the party of the first part, or his designate, as long as said party of the first part is in the business of the sale and distribution of said petroleum products.'
"The sublease further provided that if the party of the second part shall fail to perform any covenant or condition therein, the party of the first part may enter the premises and repossess the same. Subsequently Groh without the consent of Shaw assigned his interest to Joseph Luczyk, the respondent herein, and Groh was no longer in the business of the sale and distribution of petroleum products. Shaw thereupon refused to purchase petroleum products from the assignee, Luczyk, who demanded of Shaw that he purchase petroleum products from him. Subsequently after notice sent to Shaw, Luczyk commenced an unlawful-detainer action predicated on the refusal of Shaw to purchase petroleum products from him.
"From the judgment of the Milwaukee county circuit court affirming the judgment of the Milwaukee county civil court that Luczyk have restitution of the real-estate premises, Shaw, the defendant in the unlawful-detainer action, appeals."
The court accepts this statement, except to it there should be added this provision of the lease:
"Agreements To Bind Parties.
"The term `first party' and `second party' when used herein shall be taken to mean either singular or plural, masculine or feminine, as the case may be, and the provisions of this instrument shall bind the parties mutually and their respective heirs, executors, administrators, legal representatives, successors, and assigns."
These terms express agreement that the lease is assignable. Nothing in it supports a contention that to have a valid assignment by one party there must be consent to it by the other. By assignment the lessor's assignee succeeds to the rights and obligations of the lessor unless the assignment notes a restriction of the original terms. There is no such restriction here.
Appellant submits that there is something personal or confidential in the relationship between Groh and Shaw whereby Groh may not freely assign his contract rights. The terms of the lease do not state or imply that meaning. Shaw has agreed to buy exclusively, not from Groh personally, but "from the party of the first part, . . . as long as said party of the first part is in the business . . ." And the "party of the first part" is defined to identify not only Groh, individually and personally, but any person, masculine or feminine, singular or plural, a successor or an assign. We cannot find here any express or implied agreement that Groh's products or Groh's personality limit the rights to which Groh's assignee may succeed.
We see no further effect in the phrase set off by commas, "or his designate," than while "the party of the first part," whoever he may be, is in the business he need not supply Shaw's requirements himself but has the alternative of diverting Shaw's purchases to some "designate" whom Shaw must accept. The privilege of designation of another supplier by the party of the first part is not material here because Luczyk has become by assignment the party of the first part and is in the business and is willing and able to supply Shaw himself without filling Shaw's orders through a designated third person.
The action was brought and tried in the civil court of Milwaukee county, where judgment was rendered for plaintiff-respondent. Appeal was then taken to the circuit court for Milwaukee county where plaintiff was again victorious. The same questions are now presented to us and we conclude that we must repeat the answers which appellant received before.
Luczyk tenders performance under the terms of the lease and Shaw has refused the performance which the lease has required of him. His failure of performance gives the party of the first part a right to repossess the premises.
By the Court. — Judgment affirmed.
MARTIN, C. J., took no part.
The lessee's promise to buy all petroleum products specifies no price nor formula for determining price. The parties have not referred to this fact upon appeal. Perhaps there is a trade custom for determining price or an understanding between the parties. Under these circumstances I concur in the decision, merely noting that questions are raised in my mind by the apparent indefiniteness of the promise.