Gersich v. Starich
| Decision Date | 06 June 1922 |
| Citation | 188 N.W. 492,177 Wis. 507 |
| Parties | GERSICH v. STARICH ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Sheboygan County; Michael Kirwan, Judge.
Suit by John Gersich against Anton Starich and another. From judgment for defendants, plaintiff appeals. Affirmed.
A suit in equity to set aside a transfer of a one-half interest in the State Realty Company, a partnership, and in other property on the ground of fraud and for a recovery of the purchase price. The court took an advisory verdict. The jury found among other things: (1) That each of the defendants represented to the plaintiff that each of the defendants derived an income of $1,000 per month from the business of the State Realty Company; (2) that such representations were not made as statements of fact; (3) that they were made for the purpose of inducing plaintiff to purchase the interest of the defendant Burkhart in said company; (4) that plaintiff relied upon said representations to the extent of being thereby induced to purchase the said interest of defendant Burkhart; (5) that said representations were false; (6) that the defendants knew them to be false; (7) that plaintiff, relying upon them, failed to exercise ordinary care; and (8) that the defendants did not conspire together to defraud the plaintiff by means of such false representations.
The trial judge made complete findings of fact, in which he found that no false representations of any kind had been made by the defendants, or by either of them, and that they had not conspired together to defraud him. He also stated in his conclusions of law that--
“The foregoing findings of fact are hereby substituted by the court for and instead of the advisory verdict which was rendered herein by the jury, and the judgment shall so declare.”
From a judgment dismissing the complaint upon the merits the plaintiff appealed.Charles Voigt, of Sheboygan, for appellant.
Theodore Benfey, of Sheboygan, and M. C. Mead, of Plymouth, for respondents.
VINJE, C. J. (after stating the facts as above).
The cause was submitted on both sides upon printed briefs. Though the trial court made findings of fact which he declares shall take the place of the verdict, and though the appellant's attorney correctly states that the verdict is advisory merely, yet his whole brief is devoted to sustaining the proposition that the verdict entitles plaintiff to judgment.
[1] The verdict being advisory merely, it became the duty of the court to make findings of fact. Northwestern Nat. Bank v. Ramsey, 96 Wis. 544, 549, 71 N. W. 939. Such findings set aside and superseded the verdict in so far as they differed from it. Harrison v. Juneau...
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Marshall & Ilsley Bank v. Schuerbrock
...Where findings are made and the findings conflict with the verdict, the findings supersede and set aside the verdict. Gersich v. Starich, 177 Wis. 507, 188 N. W. 492. A brief reference to applicable legal principles will be helpful in a solution of the questions presented by the record. Exc......
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Muckler v. Smith
...as here, such verdict is advisory only, will not be reviewed on appeal. See Hall v. Harris, 145 Mo. 614, 47 S.W. 506; Gersich v. Starich, 177 Wis. 507, 188 N.W. 492. In the instant case, if the findings of the court are supported by the evidence, the conclusions and judgment must, of necess......
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Muckler v. Smith
...as here, such verdict is advisory only, will not be reviewed on appeal. See Hall v. Harris, 145 Mo. 614, 47 S.W. 506; Gersich v. Starich, 177 Wis. 507, 188 N.W. 492. In instant case, if the findings of the court are supported by the evidence, the conclusions and judgment must, of necessity,......