Rische Const. Co. v. May

Decision Date28 November 1961
Citation15 Wis.2d 123,112 N.W.2d 165
PartiesRISCHE CONSTRUCTION CO., a corporation, Appellant, v. Walter A. MAY et al., co-partners, d/b/a The Wishing Well, Respondents.
CourtWisconsin Supreme Court

Action commenced pursuant to sec. 291.10, Stats., by Rische Construction Company based upon an injury sustained by reason of an unlawful detainer and holding over of possession by the defendants Walter A. May and Joseph Bieganski, co-partners d/b/a The Wishing Well, of the premises at 8818 West North Avenue, Wauwatosa, Wisconsin.

The trial court in its findings and judgment found that May and Bieganski unlawfully retained possession of the premises up to and including the 31st day of October, 1957, but that notwithstanding the unlawful retention of the possession of the premises the plaintiff failed to show any damages proximately resulting from the unlawful retention and entered judgment in the amount of $79.60 for the replacement of a rear door and rear window.

It is from this judgment that the plaintiff appeals.

The facts will be stated in the opinion.

Affeldt & Lichtsinn, Eldred Dede, Milwaukee, for appellant.

Eisenberg & Kletzke, Edwin A. Star, Milwaukee, John W. Bernard, Milwaukee, of counsel, for respondents.


Plaintiff seeks treble damages under sec. 291.10, Stats., 1 based on a judgment of the circuit court for Milwaukee county which was entered on November 30, 1956, which judgment provided for the issuance and execution of writ of restitution of the premises occupied by May and Bieganski and stayed the execution until January 31, 1957. Further stay was granted until October 31, 1957, all conditioned upon the defendants paying $200 monthly rental to the plaintiff.

The premises consisted of a store building on West North avenue in the city of Wauwatosa with five first floor stores with complete basements owned by Rische Construction Company. The defendants occupied store No. 3, but did not occupy the basement located thereunder. All stores were of similar character, each having basements. The defendants May and Bieganski occupied the first floor. The basement under the store was occupied and used by the plaintiff for storage of building materials, millwork and some machinery belonging to plaintiff Rische Construction Company.

The complaint in the instant action alleges that by reason of the retention and unlawful possession of the premises, plaintiff sustained the following injuries and damages: (a) an amount equal to the sum of $60 for each month of said unlawful possession from December 1, 1956, through October, 1957, or the sum of $660, this amount representing the reasonable rental value of the premises during the period of occupancy, in excess of the amount already paid; (b) replacement of rear door of premises damaged by defendants in the sum of $29.63, and (c) replacement of rear window removed by defendants to permit placement of air conditioning equipment subsequently removed in the sum of $38.82.

The complaint further alleges that under the provisions of sec. 291.10, Stats., plaintiff is entitled to recover treble damages.

Rische Construction Company contends that the reasonable rental value of store No. 3 is more than the $200 a month determined by the court on November 30, 1956.

The testimony of Casper F. Rische, president of the plaintiff corporation, is that a person offered him $250 a month rental for store No. 3 for use as a delicatessen store. No other proof of such offer nor of the date thereof was made. From the record it appears that the store to the west of store No. 3 rented for $250 a month. That store was approximately four feet wider than store No. 3 and the rent included the basement. The store to the east of store No. 3 was identical in size and rented for $225 a month including basement.

The trial court took judicial notice of a previous action in 1954, in which May and Bieganski were parties-plaintiffs and Rische Construction Company was party-defendant. This court will also take judical notice of such action.

The previous action was instituted for the purpose of compelling Rische Construction Company to execute a lease for the premises described at 8818 West North Avenue. Rische Construction Company counterclaimed for the restitution of the premises based upon the serving of a...

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5 cases
  • Capt. Soma Boat Line, Inc. v. City of Wisconsin Dells
    • United States
    • Wisconsin Supreme Court
    • January 15, 1973
    ...preclude the plaintiff from pursuing any other available remedy. Judgment affirmed. 1 Laws of 1959, ch. 441.2 Rische Construction Co. v. May (1961), 15 Wis.2d 123, 112 N.W.2d 165; Walter W. Oeflein, Inc. v. State (1922), 177 Wis. 394, 188 N.W. 633.3 See: Briggson v. Viroqua (1953), 264 Wis.......
  • Griesbach v. Knight
    • United States
    • Wisconsin Court of Appeals
    • July 30, 1991
    ...158 Wis. 309, 311, 149 N.W. 32, 33 (1914), the court has qualified this rule in practice. For instance, in Rische Construction Co. v. May, 15 Wis.2d 123, 112 N.W.2d 165 (1961), the court deemed it permissible to take judicial notice of the record of an earlier action between the same partie......
  • Siddique v. Bd. of Regents, 2014AP777.
    • United States
    • Wisconsin Court of Appeals
    • March 31, 2015
    ...respondents' brief, and we may take judicial notice that Siddique and Scott launched another proceeding. See Rische Constr. Co. v. May, 15 Wis.2d 123, 126, 112 N.W. 165 (1961). Indeed, Siddique and Scott do not dispute that they filed a second circuit court action or that it presents the su......
  • Nelson v. Union Nat. Bank
    • United States
    • Wisconsin Court of Appeals
    • January 18, 1983
    ...results in exemplary damages, we will not extend the application of the statute by implication. See Rische Construction Co. v. May, 15 Wis.2d 123, 127, 112 N.W.2d 165, 168 (1961). The parties do not dispute the relevant facts. Nelson pledged his truck and assigned his life insurance policy ......
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