Gunther v. Ullrich

• Decision Date: 03 May 1892
• Citation: 52 N.W. 88,82 Wis. 222
• Parties: GUNTHER v. ULLRICH ET AL.
• Court: Wisconsin Supreme Court

82 Wis. 222

52 N.W. 88

GUNTHER

v.ULLRICH ET AL.

Supreme Court of Wisconsin.

May 3, 1892.

Appeal from superior court, Milwaukee county; F. L. GILSON, Judge.

Action by Henry E. Gunther against Louis Ullrich, Sigmund Bing, Louis Abraham, and Hannah Abraham to recover damages for the fraudulent sale of certain lots of land. Judgment for defendants. Plaintiff appeals. Reversed.

The other facts fully appear in the following statement by PINNEY, J.:

This action was brought to recover against the defendants damages claimed to have been sustained by the plaintiff by reason of the alleged fraud and deceit of the defendants in respect to the location of five certain lots of land in Stanhope's subdivision No. 2, in Milwaukee county, which were exchanged by the defendants Bing and Hannah Abraham in addition to a cash payment of $1,500, for a stock of goods owned by the plaintiff, Gunther. Gunther had employed the defendant Ullrich, for a commission, to sell his stock of goods for $5,000; and it is charged by him, in substance, that the defendants falsely, and with intent to deceive, represented to him that said five lots of land designated, on a plat they exhibited to him of Stanhope's subdivision No. 2, as lots 1 and 2, in block 1, and lots 6, 7, and 8, in block 2, were situated within the limits of the city of Milwaukee, and were located upon a certain street known as the “White Fish Bay Road,” and were valuable, and worth the sum of $700 each, or $3,500 in all; that Ullrich took the plaintiff in a carriage to said White Fish Bay road, and to a place thereon known as “Lueddeman's Farm and Summer Resort,” and there pointed out to him certain valuable lands near the said farm and resort, and then and there falsely and fraudulently represented to him that said lots described on said plat of subdivision No. 2, which had been given to the plaintiff, were upon the lands so pointed out; that confiding in the truth of such representations, and in reliance thereon, he sold and delivered his said stock of merchandise to the defendants Bing and Louis Abraham, making a bill of sale thereof at their request to said Bing and Hannah Abraham, wife of the defendant Louis Abraham, the said Louis Abraham paying him $1,500 therefor, and delivering to him a pretended deed of conveyance of said lots, purporting to have been executed by the defendants Bing and wife and said Louis and Hannah Abraham; that in truth and in fact said lots were located a long distance out of said city of Milwaukee, and not on said White Fish Bay road, or near said Lueddeman's farm, as was pointed out to the plaintiff, and said lots were not in fact worth more than $100 each; that said deed, on account of certain defects, was not sufficient to pass the title to said lots, which it was alleged was in the defendants Bing and Hannah Abraham; that the plaintiff recorded said pretended deed, and, upon the discovery of the alleged fraud, he tendered to the defendant Bing a reconveyance of the lots to said Bing and Hannah Abraham, but he retained the $1,500 so paid; and he claimed $3,500 damages on account of the fraud. The defendant Ullrich denied making the fraudulent statement imputed to him, and alleged that the plaintiff had full means and knowledge with which to ascertain the location of the lots. The other defendants admitted the sale and delivery to said Bing and Hannah Abraham of the stock of goods for the conveyance of the lots in question, and the sum of $1,500, but denied all negotiations or combination with Ullrich except in dealing with him as plaintiff's agent, and alleged that they had delivered a correct and sufficient deed of the lots to the plaintiff at his request, and that, at the time of said sale, the plaintiff was fully informed of the situation of the real estate in question. After a trial by a jury, a special verdict was found, finding: (1) That the defendant Louis Ullrich knowingly showed the plaintiff other lots than those purchased for the lots purchased. (2) The defendants Sigmund Bing and Hannah Abraham took part in the negotiation for said sale or exchange, or in bringing it about. (3) There was no combination, conspiracy, or agreement between the agent of the plaintiff and the other defendants to defraud the plaintiff. (4) The defendant Louis Ullrich, before plaintiff started out to see said lots, represented to him that said lots were within the city limits of Milwaukee. (5) The plaintiff parted with his stock of goods and fixtures, relying upon these representations made before starting to see the lots. The sixth question and answer are as follows: “Did Louis Abraham, or other of the defendants, aid, advise, counsel, or assist in any way the said Louis Ullrich in taking the plaintiff out to see the lots, or in pointing out the wrong lots to the plaintiff? Answer. Yes.” (7) The defendant Louis Abraham represented to the plaintiff the lots in question were within the city limits of Milwaukee. (8) The plaintiff parted with his stock of goods and fixtures relying upon such representations. (9) The representations made by said Ullrich, stated in the fourth finding, were made by him in the hearing and with the knowledge of Louis Abraham. (10) The value of the plaintiff's stock of goods, etc., September 30, 1889, was $5,000. (11) The plaintiff did not, after knowing that the lots in question were not within the city limits of Milwaukee, go on and consummate or ratify said exchange of property, or accept said lots. (12) The defendant Louis Abraham, before the commencement of this action, tendered back to the plaintiff a rescission of said contract and a return of his property. (13) The plaintiff refused such proposition. (14) The defendant Louis Abraham did not deliver to and leave with the plaintiff a printed plat showing the location and situation of the lots in question prior to the exchange of the property in question. (15) None of the defendants, by any artifice, prevented or dissuaded the plaintiff from making inquiry with reference to the true location of said lots. (16) (Immaterial.) (17) The plaintiff did have the present means of information as to the location of these lots on or before October 1, 1889. (18) The lots shown to the plaintiff by said Ullrich, on or before September 30, 1889, were worth $700 apiece. (19) The value of the five lots in question in Stanhope's subdivision No. 2, September 30, 1889, was $1,000. The plaintiff moved the court for judgment in his favor upon the special verdict, which was denied, and judgment ordered for defendants. To these rulings the plaintiff excepted, and from a judgment rendered in favor of the defendants he appealed.McKenney, McAuliffe & Wambold, for appellant.

Turner & Timlin and Cox & Cox, for respondents.

PINNEY, J., ( after stating the facts).

The finding in answer...