Harweger v. Wilcox
| Decision Date | 01 May 1962 |
| Citation | 114 N.W.2d 818,16 Wis.2d 526 |
| Parties | Walter G. HARWEGER et al., Appellants, v. Myron WILCOX et al., Respondents. |
| Court | Wisconsin Supreme Court |
An action for damages based upon fraudulent misrepresentations brought by the purchasers of a farm, Walter and Betty Harweger against Myron and Mae Wilcox, the sellers and previous owners of a farm.
The complaint alleges two causes of action: The first being based upon fraudulent misrepresentations and the second an equitable action for recision based on mutual mistake as to the total number of acres in the farm. The second cause of action was dismissed by the trial court on the grounds of failure of proof.
The issues in the damage action based on fraud were submitted to the jury in a special verdict. On June 7, 1961, the jury found: (1) That defendants or their agents for the purpose of inducing plaintiffs to buy the farm represented that the farm contained 80 acres of tillable upland soil and about 35 acres of tillable bottom land, adequately drained; (2) That such representation was false; (3) That plaintiffs believed such representations to be true and relied thereon in making purchase of the farm; and in answer to the damage question found that had the farm been as represented, it would have had a fair market value of $36,000; and that the farm had an actual fair market value of $26,000.
The court held that the evidence sustained the jury's findings to all of the questions except the damage question; that the verdict was not perverse, but that the damages were excessive. The court further found that $6,000 was the reasonable amount of plaintiffs' damages and ordered that plaintiffs should have the option to enter judgment for that amount plus costs, or defendants to have a new trial on the issue of damages only.
On July 7, 1961, without prior notice to either party, the court, on its own motion, vacated its prior order, enlarged the time within which to hear and determine motions after verdict an additional 50 days, set the matter for oral argument on August 21, 1961, and directed the exchange of briefs. Thereafter, and on July 21, 1961, at the request of the court, plaintiffs' counsel wrote the judge a letter agreeing to the extension of time for motions after verdict.
The matter was re-argued September 15, and the court on the same day made its decision on the motions after verdict wherein it found that the evidence sustained the jury's findings to all of the questions except the damage question. As to damages, the court found that the $10,000 damages found by the jury was excessive, that because plaintiffs' expert witness did not give his opinion as to the value of the farm if it was as represented, plaintiffs had failed to establish such value and that plaintiffs were not entitled to the 'out-of-pocket' rule of damages; that it was prejudicial error on the part of the trial court to sustain the objection to the question put to plaintiffs' expert witness on cross-examination as to his opinion of the 'represented' value of the farm, on the grounds that such an opinion had not been covered on direct examination; that the case should be settled for $7,250, and that defendants should have the option within 20 days to waive the prejudicial error and consent to judgment for that sum plus costs, or in lieu thereof, defendants to have a new trial on the issue of damages only. An order was entered October 17, 1961, more than 20 days having elapsed since the granting of such option. From that order the plaintiffs appeal.
Frederick F. Hillyer, Madison, for appellants.
Oldenburg, Manzer & Engel, Madison, for respondents.
Defendants-respondents were the owners of a farm located in Dane county. About February 16, 1959, they listed the farm for sale with H. E. Gilbert, a real estate broker, and signed a listing contract with Mr. Gilbert, which contract described the farm as:
Acres tillable--80 up & 35 marsh, * * * Acres timber 3 Oak Grove, balance of acreage--marsh and pasture.
Mr. Gilbert prepared a brochure, advertising the farm and a part of the brochure stated:
A copy of the brochure was mailed to plaintiffs who lived in central Illinois. During the month of February, 1959, plaintiffs visited the farm twice accompanied by Mr. Arthur Smith, one of Mr. Gilbert's salesmen. Due to the depth of snow on the ground they were unable to walk around the farm. Plaintiffs relied on the representations made as to the number of tillable acres in the farm and in March, 1959, purchased it for $36,000.
After moving on the farm, plaintiffs ascertained that there were only about 62 acres of tillable upland and from 7 to 15 acres of tillable bottom land; and that the entire area of the farm enclosed within what plaintiffs assumed to be the boundary fences was only 116 acres.
Plaintiffs commenced an action setting forth two causes of action: (1) An action for damages based on fraudulent misrepresentation, and (2) An equitable action for recision based on mutual mistake as to the total number of acres in the farm.
During the trial both parties offered expert testimony as to the actual value of the farm. On behalf of the plaintiffs, Mr. Robert Smith testified in substance as follows: That he had been in the appraising business for about 28 years. In the years 1958 and 1959, he was employed by the town of Pleasant Springs to make reassessment appraisal of all of the real estate in the township; and pursuant to such employment he examined and made an appraisal of the Harweger-Wilcox farm.
On May 21 and 22, 1961, he made another appraisal of the Harweger farm. He walked over a good portion of the farm, he examined the farm carefully, the buildings and soil, and referred to comparable sales in the area. He calculated a total of 62 acres of workland. The combined value of the land and buildings rounded off to $19,000, which in his opinion was the fair market value of the farm in 1959.
On cross-examination this witness was asked his opinion of the value of the farm if it had been as represented. Objection was made on the grounds that that matter had not been covered on direct examination and the objection was sustained on that ground.
Mr. Arthur Smith testified for the defendants in substance as follows: (he was the salesman for Mr. Gilbert who conducted the negotiations for the sale of the farm.) That he had been on the Harweger farm four or five times, twice when the deal was made and a couple of times after that. He made a detailed inspection of the buildings, but did not measure them, that is the only farm in the town of Pleasant Springs that he had sold and he was not aware of any comparable sales in the town of Pleasant Springs.
As far as he knew, the farm had 80 acres of good upland soil and 35 acres of good bottom land, and in 1959, was worth $36,000. The farm as represented was worth $36,000, and if it had only the number of acres of plow land, as testified to by Mr. Robert Smith, it would have been worth approximately that.
In his opinion the fact that the farm was located near Madison had a great deal to do with its value. He also considered Mr. Wilcox's testimony as to a gross income of $12,000 for 1959, a substantial factor. He calculated that the cost of operation is equal to about one-half the gross income or $6,000 which would mean a return of approximately 11 per cent on the investment. He testified that the national average for the year previous to the trial was three and one-half per cent on farm land.
It is relevant that Mr. Wilcox also testified that his gross profits for 1958, was only some $7,400 and that on his income tax returns for the years 1957, and 1958, he claimed net losses of $1,169.58 and $2,760.43 respectively.
The relevant issues on this appeal are: (1) Whether the trial court could extend time to decide motions after verdict on its own motion; (2) Whether the trial court's refusal to allow cross-examination of the expert witness as to the value of the farm as represented, was error, and (3) damages.
Extension of time on trial court's own motion.
Respondents rely on the case of Beck v. Wallmow (1938), 226 Wis. 652, 277 N.W. 705, to sustain their position that sec. 270.49(1), Stats., grants the trial court discretion to enter an order extending the time for cause on its own motion.
It is appellants' position that the holding of the Beck Case was overruled by Boyle v. Larzelere (1944), 245 Wis. 152, 13 N.W.2d 528, which case stands for the proposition according to the appellants, that the matter of enlarging time came under the provisions of sec. 269.45, Stats., a statute of general application except as limited as to time for making the order of sec. 270.49, Stats.
The Boyle Case however does not overrule Beck v. Wallmow, supra. Boyle holds that the court cannot extend the time after the period (within 60 days after rendition of verdict) has run since sec. 270.49, Stats., controls over sec. 269.45, Stats.,...
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