Casson v. Schoenfeld

• Citation: 166 Wis. 401,166 N.W. 23
• Parties: CASSON v. SCHOENFELD ET AL.
• Decision Date: 05 January 1918
• Court: United States State Supreme Court of Wisconsin

166 Wis. 401

166 N.W. 23

CASSON

v.SCHOENFELD ET AL.

Supreme Court of Wisconsin.

Jan. 5, 1918.

Appeal from Circuit Court, Iowa County; George Clementson, Judge.

Action by Max Brickman against F. W. Schoenfeld and another. On death of plaintiff, Henry Casson, as special administrator, became plaintiff. Judgment for plaintiff, and defendants appeal. Reversed, and new trial ordered.

One Max Brickman, now deceased, and for whose estate the plaintiff was appointed special administrator after the commencement of the action, conducted a general store at Linden, Wis. The defendant Schoenfeld was a minister at Dodgeville, Wis., dealing to some extent in real estate also, particularly lands in North Dakota, and at the time in question had an option or right to sell a farm of 480 acres in Mercer county, in that state, owned by one Stewart. The defendant Elliott was a merchant at Richland Center, Wis., and engaged in selling real estate, and owned another 480 acres in Billings county, N. D., about 70 miles from the tract in Mercer county. Elliott met Brickman through one Sullivan, a real estate agent living at Lone Rock, Wis., and a meeting was had between Elliott and Brickman at Linden to discuss a trade of the North Dakota land for Brickman's store. Elliott knew that defendant Schoenfeld had this option on the Mercer county lands at the time. An arrangement was made between Elliott and Brickman whereby Sullivan was to accompany Brickman to inspect lands in Dakota proposed to be traded, and on September 20th, while on the way, and at Madison, they met defendant Schoenfeld, who was then intending to visit other lands in North Dakota than either of these two tracts. It was then arranged that Schoenfeld should accompany Brickman instead of Sullivan. It was understood as between the two defendants that in case Brickman was not satisfied with the Billings county land belonging to Elliott that the tract in Mercer county might be used for the purpose of an exchange. Schoenfeld and Brickman went to Hebron, N. D., and at that place Schoenfeld had one Barker take Brickman to see the land in Mercer county, at a distance from Hebron of about 40 miles, and on this trip Brickmandid not see the Billings county land owned by Elliott. Schoenfeld and Brickman were on the train together on their return trip, which was about September 25th.

On the return a written contract was made, which was not produced by either party on the trial, and dated September 26th, purporting to be between Elliott and Brickman for the exchange of the store property at Linden for the farm in Mercer county. There is a dispute between the parties as to whether this contract was written out by Schoenfeld at Madison on the way back or at the Brickman store in Linden one or two days after such return.

On October 8th the parties again met, and it is uncontradicted that a further written agreement was made out by Schoenfeld and signed by the two arranging for the taking of an invoice of the stock of goods at the Linden store, and such invoice was taken, and there is no dispute as to the amount thereof, and such amount was the basis for the judgment for damages entered by the court upon the special verdict.

The material parts of the special verdict of 13 questions were: That before the transfer was made Elliott told Brickman that the 480 acres of land Elliott owned in North Dakota was worth at least $25 an acre, was black loam soil, and free from stone; that such representations induced Brickman to go to North Dakota with defendant Schoenfeld to look at said 480 acres with a view of entering into the trade; that such representations were relied upon and were the inducement to Brickman to exchange his stock of goods for the 480 acres of land and to assume the payment of a $3,000 mortgage thereon; that defendant Schoenfeld did not make statements concerning the character of the land similar to those the jury found that Elliott made; that Schoenfeld in what he did to promote the trade of the 480 acres of land for Brickman's store was acting as an agent of Elliott and in his own interest.

By the tenth question of the special verdict the jury found that at the time Brickman entered into the contract of exchange he was mentally deranged; by the eleventh, that when Brickman transferred his stock of goods, he was not of sufficient mental ability to know what he was doing and the nature of the act done, and did not have ability to exercise reasonable judgment in regard to such act. (To this finding defendants filed no exception or any motion to set aside the same.) By the twelfth and thirteenth questions they found respectively that Elliott and Schoenfeld at the time of the trade knew, or, as men of ordinary intelligence, observation, and prudence, should have known, that at the time the trade was negotiated and carried out Brickman was mentally deranged, and not of sufficient mental ability to exercise reasonable judgment in regard to such trade.

The jury also found that the representations as to the kind of soil and the value of the land were not true, and that the land was worth but $15 an acre, and that the market value of the stock of goods was the invoice price.

After motions by both parties the court ordered judgment in favor of the plaintiff for $5,691 and costs against the two defendants, from which judgment each of the defendants appeal to this court.

Jeffris, Mouat, Oestreich & Avery, of Janesville, for appellants.

Hill & Spohn, of Madison, for respondent.

ESCHWEILER J. (after stating the facts as above).

The appellant Schoenfeld contends that there was no evidence to support a judgment against him. The two defendants contend that the court erred in admitting evidence and in assessing the measure of damages, or erred in refusing to grant a new trial.

There is no way of determining from the record herein, including the decision of the trial court in passing upon the motions made after verdict, whether the judgment is entered against the defendants on the theory that the plaintiff was entitled to recover on the ground of false representations, which may be considered as one cause of action, or because the stock of goods was obtained from Brickman by the defendants at a time when Brickman was mentally incompetent to transact the business, and when such condition was known or ought to have been known by the defendants and they taking advantage of such condition, which may be considered as a second cause of action. It would appear from the respondent's brief on appeal that he apparently relies in support of this judgment on the theory of such second cause of action.

[1] Upon the face of the verdict as it stands a judgment could be properly entered against the defendant Elliott on the ground that by reason of his false representations as to the character and the value of the land conveyed to Brickman the latter was induced, and to his damage, to transfer his stock of goods to Elliott. The jury, however, have expressly acquitted the defendant Schoenfeld of making representations similar to those which they find the defendant Elliott made concerning the land. This would necessarily prevent entering a judgment against the defendant Schoenfeld on the ground of any false representations inducing the contract unless such a judgment could be supported by the finding that what Schoenfeld did in inducing the trade by Brickman was done in his own interest and as agent for Elliott. There is no finding, however, and no expression by the trial court to the effect, that he found that Schoenfeld knew that Elliott had made any representations to Brickman concerning this land, and manifestly, unless he did know that fraud had been practiced by Elliott in representing this land to Brickman, the mere fact that he acted as agent in such transfer would not be sufficient to make him liable with Elliott on the ground of false representations. There is testimony to the effect by members of Brickman's family that Schoenfeld was present at one or more interviews between Brickman and Elliott before the day on which the contract to make an inventory of the goods was made on October 8th, and that on one or more of such prior visits Schoenfeld also made similar representations as to the value and nature of the 480-acre tract. But both Schoenfeld and Elliott deny that Schoenfeld was present prior to October 8th at any interview between Elliott and Brickman at Linden where the members of the family claim such representations were made by Schoenfeld. The jury have expressly found in their answer to the fourth question that the testimony of the defendants was true as to there being no representations made by Schoenfeld. This, therefore, fairly construed, should be held a determination in defendant Schoenfeld's favor of the question as to whether Schoenfeld was present at those prior meetings, and therefore chargeable with knowing of Elliott's representations, because such actual presence there before October 8th is necessarily involved, as the testimony stands herein, in the determination of that fourth question of the verdict. There is no other view of the evidence in the record which would support a finding, or warrant this court in assuming under section 2858m a finding that Schoenfeld knew or ought to have known that Brickman was induced to make this trade by virtue of any false representations made by Elliott concerning the land, and consequently there is no support for upholding the judgment against Schoenfeld on the basis that he is liable as for false representations.

If, however, defendants knew or ought to have known that at the time of the exchange by which Elliott got the stock of goods in October, 1910, from Max Brickman that Brickman was so mentally deranged as to be incompetent to transact such business, they could nevertheless be held to have participated in a fraud upon him by taking advantage of that condition, and for that they could be required to respond in...