Herbst v. Lowe

• Decision Date: 23 February 1886
• Citation: 26 N.W. 751,65 Wis. 316
• Parties: HERBST AND ANOTHER v. LOWE.
• Court: Wisconsin Supreme Court

65 Wis. 316

26 N.W. 751

HERBST AND ANOTHER

v.LOWE.

Supreme Court of Wisconsin.

Filed February 23, 1886.

Appeal from circuit court, Milwaukee county.

The complaint alleges, in effect, that November 28, 1882, the defendant, being the agent at Richfield, Washington county, for the McCormick Harvesting Machine Company, and having a dwelling-house on two village lots therein, and a warehouse, falsely represented and pretended that he had such agency for the five years next ensuing, with the exclusive right to the territory for 10 miles around, and with the right to sell it, and that he could procure the appointment of the plaintiffs as such agents for said term, and then and there proposed to sell said agency to the plaintiffs for $1,300, and said house and lots and warehouse for $1,500; that said warehouse was of the value of $300 in connection with such agency, but valueless without; that the dwelling-house and lots were worth $1,200; that the plaintiffs, believing and relying upon such representations and pretenses, agreed to pay, for the dwelling-house, lots, and warehouse, $1,500, and such agency in the place of the defendant for five years, $1,300, and thereupon paid the defendant $1,300 cash for said agency, and $100 cash upon the other property, and took a conveyance of all said real estate to the plaintiff Herbst, and for the balance of said purchase price the plaintiff then gave the defendant his note for $1,400, secured by Herbst's mortgage on said real estate, which notes and mortgage the defendant thereupon sold and transferred to a bona fide purchaser for value; that the plaintiffs purchased said real estate only for the purpose of securing said agency, and to be used in connection therewith; and that said representations were false, and so known to be at the time by the defendant. The answer, in effect, denied all false representations and pretenses, and alleged that the defendant did not have the agency for five years, nor any right to sell the same; that, in the negotiations preceding the completion of the sale, the defendant, disclaiming all right to sell the agency, agreed to do what he could to procure the plaintiffs' appointment for a year, and if he failed he would go in partnership with them in the business; and that the plaintiffs were to pay $2,900 for the house, lots, and warehouse, payable in installments, and that the defendant did go into partnership with them. The cause was thereupon tried by a jury, who returned a special verdict to the effect (1) that, before any contract was made, the defendant falsely and fraudulently represented to the plaintiffs that he had a right to sell and could sell the agency; (2) that November 15, 1882, the plaintiffs, relying upon such representations, entered into a written contract, whereby the defendant agreed to sell to them the premises and warehouse for $1,500, and the agency for five years at $1,400, and finally consummated the purchase, November 28, 1882; (3) that the contract of November 15, 1882, was not for the purchase of the premises and warehouse for $2,900; (4) that, before paying any money on the purchase price, the plaintiffs were not informed, and had no reason to believe, that the defendant would not sell the agency; (5) that the plaintiffs did not accept the bond in evidence before paying any money on the purchase, and before the execution of the deed and mortgage, with knowledge that the defendant could not convey the agency, or under circumstances which would afford them reason to believe he could not convey the same; (7) at the time of the execution and delivery of the bond, the defendant did not in good faith intend to endeavor to procure the agency; (8) that they did not, between November 28, 1882, and January 15, 1883, verbally agree, in lieu of procuring such agency, to become partners, and procure a joint agency; (9) nor did they enter into such contract, nor become such partners; (10) nor did the defendant in December, 1882, procure permission from the company for such joint agency; (11) that January 15, 1883, the defendant and Schlosser, with the assent of Herbst, entered into the written articles of partnership in evidence, and as such partners carried on the business until January 8, 1884; (12) that January 25, 1883, the defendant and the plaintiffs jointly became agents for the McCormick Company for that year; (13) and such agency was carried on by the defendant and Schlosser with the assent of Herbst; (14) but such joint agency was not accepted by the plaintiffs in lieu of an appointment of the plaintiffs alone; (15) such partnership was dissolved by mutual consent, January 8, 1884; (16) the consideration named in the deed to the plaintiffs was $2,900; (17) November 28, 1882, the plaintiffs received and accepted the deed of the lands and the bond in evidence, in consummation of the purchase on the part of the defendant, and, as an equivalent therefor, paid the defendant $500 cash, and their joint notes, respectively, for $1,000, $500, $500, and $400, secured by their joint mortgage back on said real estate, but with the understanding that said agency was thereby conveyed to them; (18) the value of said real estate, November 28, 1882, was $1,500; (19) the actual damage sustained by the plaintiffs by reason of the final consummation of said purchase was $1,300. From the judgment entered upon said special verdict in favor of the plaintiffs the defendant brings this appeal.Paul A. Weil and Frisby & Gilson, for respondents.

Cotzhausen, Sylvester, Sheiber & Sloan, for appellant.

CASSODAY, J.

The preliminary agreement drawn by Klippel, and signed by the parties at Richfield on or before November 15, 1882, was lost before the trial. The testimony as to the contents of that agreement was in conflict, and hence the findings of the jury thereon may be accepted as verities. According to those findings, that...