Strimple v. Parker Pen Co.

Jones, J. The first question for consideration is whether the plaintiff was entitled to treble damages. It is claimed by plaintiff’s counsel that the stay granted was exactly as if an execution had not been sued out and no stipulation made, because defendant was staying without right, without — 115 — rent, and expressly stipulating that both parties should be left with “the same legal rights and liabilities as if the action had been tried and this judgment herein stipulated had been regularly entered upon such trial in favor of plaintiff.” It is argued that “whether that judgment was stayed by an act of the court, by the assent of the plaintiff, either by neglecting to get out his execution and oust the defendant or in any other way, as by an appeal, the liabilities existing thereunder on the part of the defendant continued and were not changed.” On the other hand, defendant’s counsel contend that after the stipulation defendant, during the stipulated period, occupied the premises with plaintiff’s consent and not contrary to law and plaintiff’s rights. It is claimed as the result that no treble damages could be recovered between December 19, 1919, and April 1, 1920, and that as to this period the rights of the parties are not to be determined by the unlawful entry and detainer statute but by the provisions of the contract. The decision of the question before us evidently depends upon the construction to be given to the stipulation. No case has been cited and we have found none which helps to construe the stipulation, and we are compelled to ascertain the intention of the parties as best we can from the writing and the surrounding facts. Plaintiff contends that the defendant was merely seeking delay and had no defense or occasion to appeal. On the contrary, defendant claims that there was a bona fide controversy and that it had the right to occupy the premises until April 1st, and that the appeal was taken in good faith. The record of the municipal court is not before us, and we can hardly assume that plaintiff would have made the stipulation if it had been perfectly clear that defendant could be ousted and that the judgment of the municipal court could be sustained. In other words, it seems that experienced attorneys would not have advised their client to sign the — 116 — stipulation unless it seemed to be to their mutual advantage. Plaintiff’s counsel who signed the stipulation argues that it •was made solely for the benefit of defendant, but we think this does serious injustice to his own well-known ability. We regard it a far more reasonable conclusion that the stipulation embodied one of those compromises so often made on the eve of trials where each party, tO' avoid the expense and uncertainty of litigation, makes some concessions. We cannot agree to the proposition that the rights of the parties' were the same as if the judgment had been affirmed in the circuit court without any stipulation and the plaintiff had refrained for a time from issuing execution. In that case the defendant would still have remained in unlawful possession, and on action brought under secs. 3366, 3367, Stats., would have been liable for treble damages. In other words, we cannot ignore the stipulation. It seems very clear to us that, after the stipulation, defendant’s possession was by consent. Plaintiff’s counsel point out that the stipulation was before and not after the judgment of the circuit court, and this is claimed to be significant. We think this quite immaterial. Both the court and the parties relied and acted on it, and it is plain that after the stipulation was made plaintiff was so bound by* it that he could not have ejected defendant before April' following. Plaintiff’s counsel contends that the matter of damages was not “expressly covered” by anything that preceded the last paragraph of the stipulation and therefore there is nothing in the stipulation to prevent treble damages. But it is too plain to require argument that the second paragraph, for a valid consideration, consents to occupancy by defendant until April 1, 1920. This seems to us just as effectual a negation of the right to collect treble damages as if it had been stated in express terms. The judgments in the municipal and circuit courts were rendered pursuant to forcible entry and unlawful detainer statutes. In the case of for — 117 — cible entry there may be a fine, but the section as to treble damages is the same with respect to both classes of actions. In both, in order to have a recovery by plaintiff the defendant must be found “guilty.” In the case at bar, in order to justify treble damages during the period in question there must have been an unlawful holding over by the defendant. We cannot construe the stipulation as containing any agreement to pay treble damages; on the contrary, we construe it as such a consent to continued possession as is.wholly inconsistent with one which is unlawful. As bearing on this subject, we regard the clause providing that the court could extend the stay beyond April 1st “on such tends as the court shall deem just” quite significant. This clause not only implied a lawful possession during the interval but also a possible lawful continuance beyond April 1st. Although there are a few decisions to the contrary, by the ryeight of authority statutes of this character are treated as penal statutes, to be strictly construed. 16 Ruling Case Law, “Landlord and Tenant,” § 691; Jones v. Taylor, 136 Ky. 39, 123 S. W. 326, 22 Am. & Eng. Ann. Cas. 276. Our forcible entry and detainer statutes go back to the revision of 1839. Construing the statute (sec. 14, ch. 151, Tay. Stats. 1871) giving treble damages, this court said: “The statute under which this action was brought is highly penal, and its operation should not be extended to doubtful cases. It certainly should not be used as a substitute for ejectment; and it seems to us that in this case an attempt is made so to use it.” Carter v. Van Dorn, 36 Wis. 289. Plaintiff’s counsel has cited several cases to sustain his contention, but we do not regard them as applicable for the reason that they are not cases in which there was any stipulation as to the nature of the possession. It is our conclusion that the plaintiff was not entitled to treble damages except for the period from November 1, 1919, to December — 118 — 19, 1919, and for this period such damages were conceded by defendant’s counsel. Defendant’s counsel claim that the court erred in awarding judgment for both rental value and loss of storage rentals. We regard this a valid objection. By the judgment the plaintiff would receive a rental income for his property and also what he could have earned if he had used it himself. The lease was a necessary factor in estimating value of the business. Poposkey v. Munkwitz, 68 Wis. 322, 32 N. W. 35; Smith v. Wunderlich, 70 Ill. 426. The testimony relating to damages for loss of car-storage rentals, the item covered by defendant’s objection, is not printed. The only objection made by the appellant’s counsel is that there was a duplication. No claim is made by counsel that the only damages allowable during the period in question was $40 per month. Perhaps no such claim is made because, under all the circumstances, that amount would afford no adequate compensation. While there was consent to the continued possession, there was no agreement as to- the compensation to be paid. No precedent is cited applicable to the very unusual situation. The defendant had the use and occupation of plaintiff’s premises and should pay what the use of the premises was reasonabl}'' worth, or in the language of our statute, the lessor should have “reasonable satisfaction.” Wittman v. M., L. S. & W. R. Co. 51 Wis. 89, 8 N. W. 6; 2 Tiffany, Landl. & T. § 318; 1 Underhill, Landl. & T. § 365. Under this item of damages the court and jury, having heard the testimony, allowed $300. Since the testimony is not printed and no claim is made by defendant’s counsel that it is an improper or excessive charge, we concur in its allowance, but not in the double charge of $40 per month. No objections are made to the other items of damages allowed by the court, and in the brief of counsel it is expressly stated that the only two questions raised on this appeal are those we have considered. We consider that the — 119 — plaintiff should recover on the basis of the special verdict, excluding the amount allowed as rental and treble damages, except for the period from November 1st to December 19, 1919. By the Court. — The judgment appealed from is modified and affirmed, and the cause is remanded to the circuit court with directions to award judgment in plaintiff’s favor for the amount of the damages as indicated in the foregoing opinion, costs to be paid by respondent.