Karls v. Drake

• Decision Date: 07 January 1919
• Citation: 168 Wis. 372,170 N.W. 248
• Parties: KARLS v. DRAKE.
• Court: Wisconsin Supreme Court

168 Wis. 372

170 N.W. 248

KARLS

v.DRAKE.

Supreme Court of Wisconsin.

Jan. 7, 1919.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by Mathias Karls against Clarence Drake, in which defendant counterclaimed. From judgment rendered, defendant appeals. Reversed and remanded, with instructions.

In the summer of 1914 Mathias Karls was the owner of 80 acres of land in Adams county, Wis. The defendant, Clarence Drake, was the owner of certain real estate in the city of Madison, Wis. One day, while engaged in carpenter work at Black Earth, Wis., he was called on the telephone and asked to come to Madison. He came on an evening train, and went to the office of a real estate agent, where he found Mr. Karls, the plaintiff. A trade of Karls' 80 acres in Adams county for Drake's lot in Madison was proposed. Drake stated that he knew nothing of the land in Adams county, and that it was impossible for him to leave his work to go to see it. Karls assured him that it was good land, well located, and worth $1,500. According to Drake's testimony, Karls said: “It isn't necessary for you to do it [go and see the land]; you can rely on what I have told you, that in the least it is well worth $1,500.” The trade was finally consummated.

This action was brought by Karls to recover, on the warranty in the deed by which Drake conveyed the Madison property to Karls, damages occasioned by outstanding incumbrances. Drake counterclaimed for damages, alleging that the land in Adams county was not as represented, and particularly was not worth $1,500. The only issues tried were those arising upon the counterclaim.

The jury, by its special verdict, found (a) that Karls represented to Drake that the land in Adams county was well located, was good land, and that it was worth at least $1,500; (b) that under all the facts and circumstances Drake was justified in relying upon such representations in making the trade; (c) that the fair market value of the Adams county land at the time of making the trade was $400; and (d) that the fair market value of the Adams county land would have been $800, if it had been well located and good land, as represented.

In the final judgment the plaintiff recovered $1,231.50, against which was offset $400, plus $54.60, interest thereon from October 2, 1914, to the date of the verdict, and judgment was rendered in favor of the plaintiff and against the defendant for $776.90, being the difference between said sums. From this judgment defendant appealed.Gilbert & Ela, of Madison, for appellant.

Albert G. Michelson and Rufus B. Smith, both of Madison, for respondent.

OWEN, J. (after stating the facts as above).

The defendant contends that he was entitled to judgment in the sum of $1,100, being the difference between the fair market value of the Adams county land as found by the jury and the value thereof as represented by the plaintiff. The exact question presented is whether the representation made by the plaintiff that the land was well worth $1,500 is to be deemed a representation of a fact, or merely the expression of an opinion. The trial court treated it as the expression of an opinion, and denied judgment for the difference between the actual value and the value as so represented.

The question of whether a statement concerning the value of property, made by vendor to vendee, amounts to a representation of a fact, or merely the expression of an opinion, is ofttimes troublesome. This question was quite thoroughly treated by this court in Miranovitz v. Gee, 163 Wis. 246, 157 N. W. 790, and after a consideration of the many authorities bearing upon the subject it was there said:

“A study of the cases suggests the thought that, in the absence of an express intent to defraud, the determination of whether or not certain representations are statements of fact or of opinion depends upon whether or not the person to whom the representations are made may, under all the facts and circumstances of the case, including such person's capacity or want of capacity, rely upon them. Where the person to whom they are made may rely upon them, they are held to be statements of fact; where the person to whom they are made may not rely upon them, without being guilty of a want of ordinary care and prudence, they are denominated opinions.”

Differently stated, the question is whether the doctrine of caveat emptor applied. If it did, the vendee had no...