
    Ossowski, Plaintiff in error, vs. Wiesner and others, Defendants in error.
    
      November 1
    
    November 22, 1898.
    
    
      Landlord and tenant: Lease: Change of terms: Appeal: Damages for delay.
    
    1. A landlord who accepts from his tenant, whose lease lias several years to run, a check for a sum less than the monthly rent stipu- . lated in the lease, upon the face of which is written, “In full for rent for saloon property for month of July, 1896, under agreement made July 7, 1896, that in future tenancy shall be from month to month at §90 per month,” and retains the same with full knowledge of what it contains, is bound by it as a valid agreement changing the lease, both as to the nature of the tenancy and the amount of rent.
    2. The discretion vested in the sujireme court by sec. 2951, Stats. 1898, to give damages to the defendant in error or respondent for delay, will not be exercised unless the writ of error or appeal was clearly frivolous and taken in bad faith.
    ERROR to review a judgment of the circuit court for Portage county: Chas. M. Webb, Circuit Judge.
    
      Affirmed.
    
    The complaint shows that plaintiff in error leased to defendants Wiesner a certain building owned by him for a term of five years from July 1, 1893. The rent was to be $1,300 per year, payable monthly in advance. The lease was .in the usual form. As security for the payment of the rent and the performance of the covenants of the lease on the part of the Wiesners, the other defendants joined with them in the execution of a bond, which is fully set out in the complaint. The plaintiff claims default in the payment of rent which became due on the 1st days of May, June, and July, 1897, and judgment for §325 was demanded. The answer admitted the execution of the lease and bond mentioned, and alleged that on July 8, 1896, the parties entered into an agreement by the terms of which the rent payments were reduced from $108.33 to $90 per month after July 1, 1896, and that thereafter the Wiesners were to hold the premises from month to month; that thereafter the parties acted under said agreement, the Wiesners paying, and plaintiff receiving and receipting for rent in full, at the rate of $90 per month, down to May 1, 1897; that the Wiesners duly served notice terminating their tenancy on July 1,1897, and duly vacated the premises. They also alleged a tender of the rent due for May and June, and set up a counterclaim for repairs, amounting to $100. The counterclaim was replied to, and the issue so formed was submitted to a jury, who returned a verdict for plaintiff for $185. On the trial the plaintiff waived his right to claim rent at the rate specified in the lease, and the case was submitted to the jury on the theory that the recovery should be at the rate of $90 per month. The recovery not being in excess of the tender, judgment was entered for - the defendants for costs. The plaintiff brings error to review this judgment.
    Eor the plaintiff in error the cause was submitted on the brief of Gate, Sanborn, Lamoreux c& Park.
    
    
      John II. Brennan, for the defendants in error.
   BaRdeen, J.

The several errors relied on for a reversal of this judgment may be reduced to the single proposition that the verdict is against the weight of the evidence. There are no exceptions to the introduction of evidence, and no fault is found with the judge’s charge to the jury. Plaintiff’s brief contains a long and exhaustive discussion of the evidence (in violation of Supreme Court Rule IX), in which he seeks to convince this court that the verdict of the jury ought not to be sustained. The earnestness of counsel has led this court to review the evidence presented with great care, and to deliberately consider the points suggested as being fatal to the defendants’ case.

The main grounds of controversy were whether the original lease had been changed as to the amount of rent reserved, and also whether there had been a change of the tenancy to one from month to month. It was admitted by plaintiff on the trial that Wiesner was “kicking about hard times,” and that as to the rent coming due in July, 1896, he made him a present of $18.33, and then accepted a check for $90 in full for the rent then due. Thereafter he was to occupy the building at the same rate while times were hard, and when times got better Wiesner was to pay in full. As to the change in the tenancy, he enters his unqualified denial. Wiesner testified as to the agreement set up in his .answer, and produced a check dated July 8, 1896, for the sum of $90, payable to the order of Niek and Mary Ossowski, upon which the following statement was written: “ In full for l-ent for saloon property for month of July, 1896, under agreement made July T, 1896, that in future tenancy shall •be from month to month at $90 per month.” The check was indorsed by Wide and Mary Ossowski. Plaintiff’s explanation of the circumstance is that he did not know the check contained any writing other than the call for the amount of money named.. In this he is directly contradicted by the cashier of the bank. Mr. McDill testified that plaintiff came in with the check, and asked him what the writing was on it; that he read it over to him and asked him if that •was his agreement with Wiesner, and he replied that' it was. •Jerome Barker also testified that plaintiff showed him the ■check, and that he read it over to him. Another witness said he saw Barker in the saloon, and that they had a check there, and asked him if he wanted to see it. J. D. Civrran, one of the defendants, said plaintiff frequently appealed to him in regard to the rent, and that he told witness about the 8th or 9th of July that he had settled with Wiesner, got his money, and made a new agreement. There are other corroborating circumstances that need not be mentioned.

The court instructed the jury that if they were satisfied that plaintiff and Wiesner made the agreement as claimed, and that the former accepted the check in question, understanding what it contained, and retained it with that knowledge, it became a valid and binding agreement. We cannot now speculate upon the probability or improbability of the statements of witnesses. The case has passed the scrutiny of the trial court, who saw the witnesses and listened to the testimony given. He possessed many advantages of judging of their truthfulness and candor that cannot come to the appellate court. He refused to disturb the verdict, and we ought not to do so unless we can see clearly and distinctly that it is against the weight of the evidence. Hot with standing tlio able and elaborate argument of counsel for the plaintiff to the contrary, we think the case presents many circumstances supporting the. conclusion arrived at by the jury. We do not see how the jury could very well have arrived at a contrary conclusion. The plaintiff discredited himself. He denied every fact and circumstance that tended against him with-the utmost particularity. His denials were so positive and circumstantial as tó give rise to a suspicion that he was traveling dangerously near. the line of falsehood. The case was one peculiarly for the jury, and we can find no good reason for disturbing their finding.

We are urged to give damages to defendants for their delay, under sec. 2951, Stats. 1898. The discretion vested vin this court to award such damages will never be exercised unless the appeal or writ of error was clearly frivolous and taken in bad faith. Morse v. Buffalo F. & M. Ins. Co. 30 Wis. 534; Rice v. Garnhart, 34 Wis. 470; Northwestern M. L. Ins. Co. v. Irish, 38 Wis. 361. We cannot say that the 'writ taken in this case was either frivolous or taken in had faith.

By the Court.— The judgment of the circuit court is affirmed.  