Francois v. Cady Land Co.

• Decision Date: 03 April 1912
• Citation: 149 Wis. 115,135 N.W. 484
• Parties: FRANCOIS v. CADY LAND CO.
• Court: Wisconsin Supreme Court

149 Wis. 115

135 N.W. 484

FRANCOIS

v.CADY LAND CO.

Supreme Court of Wisconsin.

April 3, 1912.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by Joseph P. Francois against the Cady Land Company. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

The defendant is a corporation dealing in real estate and real estate securities at Green Bay. On October 8, 1907, the plaintiff purchased from the defendant at par the note of one John Mosuch and wife for $2,300, due three years after its date (viz., September 14, 1907), secured by a mortgage upon a lot and building thereon in the city of Oshkosh, which the plaintiff had never seen. The plaintiff had previously purchased of the defendant several securities of the same kind, and he alleged in his complaint “that said Joseph P. Francois had for some time purchased from the Cady Land Company other notes held and owned by it; that it was the understanding and agreement by and between said Cady Land Company and said Joseph P. Francois, that said Cady Land Company should stand back of, make good, and guarantee collection and payment of all notes, mortgages, or other evidences of indebtedness, which said plaintiff should at any time purchase from it, and it was understood and agreed by plaintiff and defendant that said Cady Land Company would stand back of, make good, and guarantee the payment and collection of such note of John and Elizabeth Mosuch, and that, if said makers did not pay the same according to the tenor of the note and mortgage hereinafter referred to, then said Cady Land Company would itself pay the same; that said plaintiff is a man unskilled in business ways and especially as to legal matters, and relied in the transaction herein set out upon said defendant, and had no attorney or other legal advice, but depended upon said defendant and its promises aforesaid.” The complaint further alleged that the real estate described in the mortgage was not worth the face of the mortgage, and that the defendant knew the fact at the time of the sale; that the interest due September 14, 1908, was unpaid; that the makers of the note are insolvent; that the mortgage was duly foreclosed, and the property sold, from which sale the plaintiff received to apply on his debt $1,627.10, leaving a balance unpaid of $1,097.16, for which judgment was demanded against the defendant.

The action was tried before a jury, and the following special verdict was rendered:

“First question: Did the defendant at the time it sold the note and mortgage in question to the plaintiff agree with him as part of the contract of said sale, that it would stand back of and make good the same?” Answer: “No.”

“Second question: Did the defendant represent to said plaintiff while negotiating said sale that the mortgaged property was worth $4,500?” Answer: “Yes.”

“Third question: If your answer to the second question should be ‘Yes,’ then answer this: Did the plaintiff buy said note and mortgage relying upon said representation?” Answer: “Yes.”

“Fourth question: What was the fair market value of said mortgaged property at the time of said sale?” Answer: “$2,700.”

The court made an additional finding of fact to the effect that “all representations made by said defendant or its agents as to the value of the mortgaged property were made honestly and in good faith, and without intent on the part of the defendant or its officers to induce the plaintiff to forego independent investigation as to the true value of said land.” Thereupon the court dismissed the complaint, and the plaintiff appeals.Sol. P. Huntington, for appellant.

Cady, Strehlow & Jaseph, for respondent.

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