O'Day v. Meyers

• Decision Date: 05 December 1911
• Citation: 133 N.W. 605,147 Wis. 549
• Parties: O'DAY v. MEYERS.
• Court: Wisconsin Supreme Court

147 Wis. 549

133 N.W. 605

O'DAY

v.MEYERS.

Supreme Court of Wisconsin.

Dec. 5, 1911.

Appeal from Circuit Court, Wood County; Charles M. Webb, Judge.

Action by John O'Day against Joseph A. Meyers. Judgment for plaintiff and defendant appeals. Affirmed.

This is an action at law to recover the balance due upon a contract for the purchase of certain lands in Wood county, Wis. The complaint alleged the due assignment of the contract to the plaintiff, and averred that all conditions precedent to be performed on his part had been performed; that he had tendered the defendant Meyers a good and sufficient conveyance of title to the land in question, but that Meyers had refused to perform his part of the contract; and that there was now due thereon the sum of $10,400, with interest. The defendant Meyers set up in his answer, among other defenses, that the contract in question was executed on a Sunday; that he had been induced by false and fraudulent representations on the part of this codefendant, Conway, to purchase the land. His answer also contained a general denial. The defendant Conway in his answer admitted each and all of the allegations of the complaint to be true. The parties waived a jury trial, and the court found, among others, the following facts:

The defendant Conway and Meyers entered into a written contract, dated May 16, 1908, for the sale by Conway to Meyers of a certain tract of land then owned by Conway. The contract was signed in duplicate by Conway and Meyers, and duly witnessed, on Sunday, the 17th day of May, 1908. These duplicate contracts, together with a check for $100, executed by Meyers to Conway, and a promissory note, executed by Meyers to Conway, for $900, were delivered to one Miller, an employé of the First National Bank of Grand Rapids, Wis., to be held by him until Monday, May 18, 1908, in order to enable Conway to make investigation as to the financial standing of Meyers. After making such investigation, Conway accepted the check of $100 and note for $900 as part payment of the purchase price of the lands, leaving a balance due thereon of $10,400. He also received a duplicate of the contract from Miller at the same time he accepted the check and note. On the same day Miller forwarded by registered mail to Meyers a duplicate of the contract, which was received by him on or about the 19th, and not later than the 20th, of May, 1908. No false or fraudulent representations were made by Conway, or any person acting on his behalf, or with his knowledge or consent, to Meyers during any of the negotiations leading up to the purchase of the land. Before entering into the contract, Meyers had full and fair opportunity to, and did in fact, make a full and thorough examination and investigation of the lands by personally viewing the same. On June 20, 1908, Conway, for an adequate and valuable consideration of $10,382 then and there paid to him in cash and by a note, duly assigned, transferred, and set over to the plaintiff all his right, title, and interest in the contract between himself and Meyers. The plaintiff, O'Day, purchased the contract without any knowledge of the fact that it was signed on Sunday, and without any knowledge whatsoever of any infirmity existing therein. The defendant Conway and plaintiff have fully performed all the conditions on their part to be performed, and plaintiff has duly tendered to the defendant Meyers a conveyance of said lands by instruments in form as prescribed in the contract, free and clear of all incumbrances whatsoever, subject to the performance of the conditions precedent upon the part of the defendant Meyers to be performed, which he has refused. On the 25th of August, 1908, the defendant Conway, for a valuable consideration, and for the purpose of insuring and securing the plaintiff against loss by reason of the insolvency of the defendant Meyers, guaranteed in writing to the plaintiff the collection of the amount due under such contract from Meyers. The defendant Meyers has failed, neglected, and refused to pay the sum due under the terms of the contract, and there is now due the plaintiff from the defendant thereon the sum of $10,400, with interest upon said amount at the rate of 6 per cent. per annum from July 1, 1908. As conclusions of law, the court found that the plaintiff was entitled to judgment against the defendants, jointly in form, for the sum of $10,400, with interest as stated, and that the judgment should provide that execution issue against the defendants Meyers and Conway, but that the same should be first satisfied out of the property of the defendant Meyers. In case sufficient property belonging to Meyers to satisfy said execution should not be found, then the amount due upon the execution should be collected of and from the defendant Conway. From a judgment entered accordingly, the defendant Meyers appealed.Perry, Morton & Kroesing, for appellant.

Daniel H. Grady, for respondent.

VINJE, J. (after stating the facts as above).

Although the case was tried by the court, without a jury, appellant assigns numerous errors relating to the admission and exclusion of testimony. Only three are deemed worthy of consideration.

[1] After having introduced testimony as to the market value of the land, appellant sought in his evidence in chief to introduce testimony to show what price had been paid for individual parcels of other lands. The court excluded such testimony, stating that it might perhaps be properly received later in rebuttal, but was not competent as evidence in chief on his behalf. The exclusion of such evidence was not error. O'Dell v. Rogers, 44 Wis. 136;Maxon v. Gates, 136 Wis. 270, 116 N. W. 758. The court also properly excluded the record of transfers, purporting to show the price for which other lands in the same town as that in question was sold. Seefeld v. Chicago, Milwaukee & St. Paul R. Co., 67 Wis. 96, 29 N. W. 904;Esch v. Chicago, Milwaukee & St. Paul R. Co., 72 Wis. 229, 39 N. W. 129.

[2] Plaintiff alleged title in himself, and appellant entered only a general denial to such allegation. He did not plead or point out in his answer any insufficiency in plaintiff's title. The title shown by plaintiff rested, not only upon deeds of conveyance from former owners, but upon a tax deed, fair on its face, duly issued and recorded more than three years prior to the date of the contract in suit, and also upon a judgment afterwards entered in an action to quiet title, founded upon said tax deed, in which the title was by the court declared to vest in plaintiff's grantor. The court therefore properly excluded testimony tending to show that the grantee in the tax deed stood in such a fiduciary relation to the owner of the land that he could not take a valid tax deed thereon. The judgment in the action to quiet title, founded upon the tax deed, was conclusive as to the title of the premises against the former owners of the land, or any one claiming through or under them. The question sought to be raised by the testimony was forever set at rest by that judgment. Marvin v. Titsworth, 10 Wis. 320;Kane v. Rock River Canal Co., 15 Wis. 179. The title tendered constituted a marketable title, and complied with the provisions of the contract of sale. Maxon v. Gates, 136 Wis. 270, 116 N. W. 758.

[3] The finding of the trial court to the effect that no false or fraudulent representations were made by the defendant Conway, inducing the appellant to purchase, is vigorously assailed. There is ample evidence to sustain the court's finding. The only representations claimed to have been false and fraudulent were statements made by the defendant Conway, to the effect that the land in question was worth from $20 to $25 per acre. The appellant examined the land personally, and testified that when he was there viewing it he saw no objection to it, and expressed no dissatisfaction whatever concerning it. It is elementary that mere representations as to value, where the purchaser...