Davis v. Nuzum

• Decision Date: 08 November 1888
• Citation: 72 Wis. 439,40 N.W. 497
• Parties: DAVIS v. NUZUM.
• Court: Wisconsin Supreme Court

72 Wis. 439

40 N.W. 497

DAVIS

v.NUZUM.

Supreme Court of Wisconsin.

November 8, 1888.

Appeal from circuit court, Vernon county; A. W. NEWMAN, Judge.

Action by Mary A. Davis against George W Nuzum for falsely representing that certain lines were the boundaries of land sold by defendant to plaintiff.A verdict for plaintiff was set aside, and judgment for costs given in favor of defendant, and plaintiff appeals.Butt & Graves, for appellant.

O. B. Wyman, for respondent.

ORTON, J.

The only facts which need be stated are such as appeared by the testimony on behalf of the plaintiff, and they are briefly as follows: The defendant purchased of one Joshua Selby the north half of a quarter section of land according to government survey, and agreed to pay therefor $1,200, in different payments, thereafter, (but the whole of which might be paid at any time before due,) and on such payment he was to receive a deed, and he immediately went into possession.Afterwards the plaintiff called upon the defendant with a view of purchasing the said land, and asked him where the lines of said tract were; and the defendant pointed to the fences which were in view on what appeared to be the north and west lines of said tract, and represented to her that said fences were on said lines.The plaintiff was ignorant of the true lines, and had never heard that they were at all in dispute.Relying upon said representations, the plaintiff then and there purchased said land of the defendant in consideration of her assuming the payment of said $1,200 to said Selby, and receiving an assignment of said contract, and of the payment of other $1,200 in addition thereto to the defendant; which latter sum was then and there paid, and said contract was duly assigned to her, and she went into possession, and afterwards paid to the said Selby what was due on said contract, and received from him a deed of said premises.About two years afterwards the plaintiff first heard that there was some question about the said fences being on the true lines, and some time afterwards the owner of the land adjacent north and west lines of said premises, one Joshua S. Graves, brought against her an action of ejectment to recover the strips of land lying between the said north and west fences and the true lines thereof; and it was found in said action that the true north line of said premises was about 21 rods north of said north fence, and the true west line thereof was about 15 rods west of said west fence; and the plaintiff in said action recovered said strips of land of the plaintiff herein, and she was dispossessed thereof.The plaintiff notified the defendant of said action, and he requested her to defend the same, and promised to indemnify her for the expenses thereof, which amounted to over $200.The two strips of land thus recovered, by the correction of the true lines, were of better quality and more valuable than corresponding strips of land on the south and east, which she obtained by such correction.The plaintiff testified that she would not have purchased said land had she known the true lines thereof, and that said fences were not on the same, and that she relied solely on the truth of said representations in making said purchase.This suit is brought to recover her damages resulting therefrom.

The circuit court, at the conclusion of the testimony, submitted to the jury the question of damages, and they found for the plaintiff the sum of $100; but the court reserved the question of the plaintiff's legal right to recover on the above facts, and finally, on motion of the defendant, set aside said verdict, and rendered judgment in his favor for costs.What were the reasons for this action of the court, and for deciding against the plaintiff's right of recovery, we are not advised by the record, and can only suppose what they may have been from the contention of the learned counsel of the respondent in his brief on this appeal.That contention is that the defendant is not answerable in damages, provided he believed the representation to be true, and had no intention to deceive; and that a false representation, although material, made without a fraudulent intent, will not support the action.The evidence does not show but that the defendant honestly believed his representation to be true, or any intent to deceive or defraud the plaintiff in making it.This contention of the learned counsel is not the law.This question is well settled in this state, in Bird v. Kleiner,41 Wis. 134, and in Cotzhausen v. Simon,47 Wis. 103, 1 N. W. Rep. 473.The first of the above cases is almost precisely in point.The parties to the purchase were on the land, and the defendant pointed out the corners and the boundaries as the true lines, and they were found not to be so, to the damage of the plaintiff, and the plaintiff recovered.One of the errors assigned for the reversal of the judgment was “that the court refused to instruct the jury that the plaintiff was not entitled to a verdict, unless he should establish to their satisfaction the fact that a fraud had been intentionally perpetrated upon him by the defendant.”The judgment was affirmed, the present chief justice stating the law as follows: “Where a vendor undertakes to point out to the purchaser the boundaries of his land, he is under obligation to point them out correctly, and has no right to make a mistake, except under the penalty of responding in damages;” citing Bennett v. Judson,21 N. Y. 238.The counsel of the respondent in that case cited numerous authorities, and the counsel of the appellant in this case cites many outside of this state in support of this doctrine to which reference may be had.In the other of the above cases, it is said in the opinion: “If the representations were material and false, and the defendant knew, or had the means of knowing, or ought to have known, that they were untrue, and the plaintiff did not know, or have the present means of knowing, that they were false, and relied upon them as being true, and suffered damage thereby, it is immaterial whether the defendant made the representations willfully or fraudulently or not, for he had no right to make even a mistake in facts so material to the contract, except under the penalty of responding in damages.”There can be no doubt or chance for mistake as to this doctrine in this state.The representation, according to the testimony of the plaintiff and in her behalf, was absolute and unqualified; and this must be accepted as the evidence, where the question of what the representation was is taken from the jury, and decided by the court.Having submitted to the jury only the amount of damages, the court reserved the question as to what the representation was, as well as that of the plaintiff's right to recover, and both of these questions ought to have been decided according to the evidence in favor of the plaintiff.It follows, therefore, that ...