Kamuchey v. Trzesniewski
| Decision Date | 06 October 1959 |
| Citation | 8 Wis.2d 94,98 N.W.2d 403 |
| Parties | Everett John KAMUCHEY, Plaintiff and Respondent, v. Adam TRZESNIEWSKI, Defendant and Appellant. |
| Court | Wisconsin Supreme Court |
Drought, Grootemaat & Cook, Milwaukee, Robert E. Cook, Louis Maier, Milwaukee, of counsel, for appellant.
Mathew Horwitz, Milwaukee, for respondent.
The basic question in appeal from the judgment is whether the defendant committed fraud by representation or concealment and whether the evidence sustains the findings.
The defendant was the lessee of a restaurant in Milwaukee which he subleased to Verna Biesik, who desired to quit the restaurant business and be relieved of her lease. In response to a newspaper advertisement for the sale of the restaurant and sublease the plaintiff had negotiations with the defendant. During these negotiations the defendant told the plaintiff the terms of sale of the restaurant fixtures and lease would be $60 a month payment on the fixtures and whatever balance the defendant could get and 'heat the place yourself with $100 a month rent'. The plaintiff subsequently in purchasing the property and entering into a sublease with the defendant paid $500 down on the purchase of the fixtures, $60 on the rent and $20 expense for preparing the sale papers and the sublease. The lease of the restaurant provided 'will obtain a licensed fireman to service boiler and will heat at own expense'.
The restaurant was a part of a building which also contained a small tavern and a second floor hall which was rented out. One furnace, located in the basement, heated the entire building. This was not known or understood by the plaintiff prior to the signing of the lease although he had previously inspected the building. The plaintiff made no inquiries of the defendant about the heating of the furnace and purchased the coal and the restaurant supplies on hand from Biesik. About two weeks after taking over the restaurant the plaintiff rescinded the contract of purchase and lease claiming he had been defrauded and brought this suit for damages.
The findings of fact are challenged by the defendant on the ground there is no evidence to sustain fraud. Fraud must be proven by clear and satisfactory evidence, which requires a higher degree of proof than in ordinary civil cases. Schroeder v. Drees, 1957, 1 Wis.2d 106, 83 N.W.2d 707; Eiden v. Hovde, 1952, 260 Wis. 573, 51 N.W.2d 531. See 1954 Wisconsin Law Review, 182, for a list of cases.
Finding of fact No. 2 states:
We find no evidence in the record that the defendant informed the plaintiff it was only necessary to heat the premises in which the restaurant was located. The plaintiff testified he was told by the defendant 'heat the place yourself with $100 a month rent'. The lease provided 'will heat at own expense'. The trial court and the circuit court on appeal took the view these words meant the restaurant portion of the building only and it was so understood by the plaintiff. The defendant contends he meant the whole building and sought to introduce in evidence his prior lease with Biesik. Whether or not it was error to exclude this sublease from the evidence was need not decide because it does not appear that the defendant knew of the construction the plaintiff put on these words or that the plaintiff was ignorant of the fact that there was only one furnace to heat the whole building. Perhaps on a construction of the lease it might be held that the lease only required the plaintiff to heat the restaurant portion of the building, but the construction of the lease is not before us. The existence of one furnace to heat the entire building does not necessarily give rise to concealment by the defendant. Even under the interpretation of the lease placed upon it by the defendant the heating cost could be prorated. The real dispute here is over the heating clause of the lease. Here the plaintiff decided he had been defrauded and rescinded the contract based on his interpretation of the clause. The obligations of a contract would mean nothing if every disputed term thereof is a basis of rescission for fraud.
The complaint alleges only concealment of the fact that it was necessary for the plaintiff to pay for the heating of the entire building. Mere silence is not a representation. It implies no purpose or design. Active concealment consists of a suppression of a fact and implies a purpose or design. 23 Amer.Jur., Fraud and Deceit, sec. 77, p. 851. We find no evidence in the record that the defendant suppressed any fact or intended to deceive the plaintiff or that his silence under all the circumstances amounted to a concealment.
The defendant also contends that the evidence showed a mistake of fact and since the plaintiff rescinded the contract and was allowed to recover the amount of his down payment the theory of recovery must have been based on equitable principles, which jurisdiction the civil court does not possess. Without a memorandum opinion and in view of the findings it is impossible for this court to determine what the theory or recovery was. The circuit court took the view that the action was for the recovery of money paid on the purchase of the restaurant fixtures based on the plaintiff's rescission of his contract and sustained the findings and conclusions of the trial court. An action to recover on a contract...
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