Better Props., Inc. v. Kocher

Decision Date02 December 1941
Citation1 N.W.2d 157,239 Wis. 294
PartiesBETTER PROPERTIES, Inc., v. KOCHER et al.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from a judgment of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Circuit Judge.

Reversed.Action begun January 13, 1941, by Better Properties, Inc., a Wisconsin corporation, against Edward and Pauline Kocher to cancel the waiver of lien alleged to have been obtained by fraud and to recover an amount claimed to be due for repairing defendants' house. Judgment for plaintiff. Defendants appeal.

The complaint alleges the existence of a contract under which defendants agreed to pay $1,263 for certain work on their real estate; that plaintiff has performed; that in payment defendants induced plaintiff to accept a certificate of paid-up stock in the Mutual Buildings and Savings Association by representing that the said certificate had the “present cash value of $1,125”; that in truth and in fact the representations were false and fraudulent; that defendants knew they were false and that they were made with intent to defraud and to induce the plaintiff to execute a waiver of lien; that plaintiff believed and relied on said representations as to the present cash value; that the stock was worth but $6 per share and the total value was only $270. The answer denies any fraud or representation as to present cash value and alleges that the certificate was exhibited to plaintiff before the acceptance; that plaintiff had full knowledge of the value thereof and accepted the same at its face value. Testimony of witnesses varied as to the worth of the stock from a small amount to par, depending on whether the estimates were based on “liquidity” or the cash that would eventually be realized upon the final disposition of the real estate back of the certificate.

The case was tried to the court and jury. After the taking of testimony had been completed the trial court ruled that there was no evidence of fraud. A motion by defendant for judgment dismissing the complaint was denied. The record shows submission to the jury of the following questions, each of which was answered “no.”

“Question 1: At the time of the execution of the contract on November 22, 1940, was it the intention of the parties that Building & Loan stock was to be taken in payment or partial payment only to the extent of its then fair market value?

“Question 2: At the time of the delivery of the stock in partial payment of the indebtedness of the defendants to plaintiff, were the parties mutually mistaken as to the then market value of the stock?”

The court upon motions made after verdict changed the answers to those questions from “no” to “yes” and decreed that the plaintiff have judgment for the balance due upon the contract to be limited, however, to $900, this amount being computed on the basis of $80 per share of the stock. The stock was required to be returned to defendants and plaintiff's lien rights were restored. This appeal is from the judgment accordingly entered.

Adolph G. Schwefel, of Milwaukee, for appellants.

I. A. Dinerstein and Irving A. Lore, both of Milwaukee, for respondent.

FAIRCHILD, Justice.

The complaint charged defendants with fraud and misrepresentation in inducing plaintiff's acceptance of the certificate of stock at its face value. The evidence did not show the existence of any fraud. The complaint was not formally amended setting out a cause of action based on contract or mutual mistake, but the trial court submitted to the jury the two questions quoted above. The testimony of the witnesses sustains the answers of the jury. From the evidence it clearly appears that when plaintiff solicited the work its agents were told that the defendants had no ready cash and were not contemplating any improvement of their real estate. Plaintiff was told that all the money defendants had was “tied up.” The response of plaintiff was by way of a question as to why the money was not available. There was an explanation of the situation as to the resources of the defendants. Pla...

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4 cases
  • Hamm v. Miller
    • United States
    • Wisconsin Supreme Court
    • December 30, 1949
    ...which under any reasonable view admits of an inference that supports the jury's finding, is not challenged. Better Properties, Inc., v. Kocher, 1941, 239 Wis. 294, 1 N.W.2d 157; O'Leary v. Buhrow, 1946, 249 Wis. 559, 25 N.W.2d 449; Van Galder v. Snyder, 1948, 254 Wis. 120, 35 N.W.2d 187. It......
  • Nowicki v. Nw. Nat. Cas. Co.
    • United States
    • Wisconsin Supreme Court
    • February 15, 1944
    ...Pac. R. Co., 1909, 139 Wis. 186, 120 N.W. 826;Corrigan v. City of Antigo, 1913, 153 Wis. 451, 141 N.W. 247;Better Properties, Inc., v. Kocher, 1941, 239 Wis. 294, 1 N.W.2d 157. Here we are asked to review the orders on motions after verdict, where the answers of the jury to questions in the......
  • Schmidt v. Hilty-Forster Lumber Co.
    • United States
    • Wisconsin Supreme Court
    • February 10, 1942
  • Giannopoulos v. Milwaukee Elec. Ry. & Transp. Co.
    • United States
    • Wisconsin Supreme Court
    • June 16, 1943
    ...the evidence presented, or on the inferences that could be drawn from that evidence, a jury question exists. Better Properties, Inc., v. Kocher, 239 Wis. 294, 298, 1 N.W.2d 157. The trial court erred in directing a verdict. Judgment reversed. Cause remanded with directions to enter an order......

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