Krause v. Busacker

• Decision Date: 09 January 1900
• Parties: KRAUSE v. BUSACKER.
• Court: Wisconsin Supreme Court

105 Wis. 350

81 N.W. 406

KRAUSE

v.BUSACKER.

Supreme Court of Wisconsin.

Jan. 9, 1900.

Appeal from superior court, Milwaukee county; George E. Sutherland, Judge.

Action by Frederick Krause against Carl F. Busacker. Judgment for plaintiff. Defendant appeals. Modified.

This is an action to recover damages for alleged false representations claimed to have been made by the appellant to the respondent, by reason of which the respondent was induced to purchase a certain mill site and dam in the town of Saukville, Ozaukee county, Wis. The complaint alleges that the respondent, on the 27th of January, 1891, owned a homestead in the city of Milwaukee, worth $2,900, and that thereafter the appellant, Busacker, opened negotiations with the respondent, Krause, to exchange the said mill site and dam for said homestead, and represented that the dam was in the best of condition, substantially made and suitable for the purpose intended; that the parties went to see the dam on the 27th of January, 1891, when the same was covered with ice, so that an inspection thereof could not be made, and that Busacker then repeated his representations, knowing them to be false, and that the plaintiff relied on the representations, exchanged his homestead for the said mill property, and also gave Busacker a mortgage for $1,200 upon the mill property in consideration of the loan of that amount which Busacker then made to Krause for the purpose of making repairs upon the mill building, which had been recently damaged by fire. The complaint alleges further that when the ice went out in the spring Krause discovered that the dam was worthless; that he (Krause) had no means, and could not procure any loan upon the property, and therefore could not reconstruct the dam, and was compelled to abandon the mill and the improvements; that Busacker sold the mortgage for $1,200 upon the mill property to one Riemer, and that said mortgage was foreclosed, and the property purchased by Busacker, who took possession thereof, and sold the same to other parties. Judgment is demanded for the purchase money of said property, and also for the sum of $3,000 expended by Krause in material and improvements placed upon the property. The answer, in effect, denies the alleged misrepresentations, and alleges that the dam was in good condition. A special verdict was rendered in the action as follows: “(1) Did the defendant, as an inducement to the proposed trade with the plaintiff, represent to the plaintiff that the dam was the best dam there is? Ans. Yes. (2) If you answer the last question ‘Yes,’ then was the representation untrue? Ans. Yes. (3) Did the defendant, as an inducement to the trade with the plaintiff, represent to the plaintiff that the dam was then in good condition? Ans. Yes. (4) If you answer the last question ‘Yes,’ then was such representation untrue? Ans. Yes. (5) If you answer the first and third questions, or either of them, ‘Yes,’ then did the defendant make such representation with the intent that the plaintiff, in making the trade, should rely upon the same as true? Ans. Yes. (6) If you answer the first and third questions, or either of them, ‘Yes,’ then did the plaintiff believe such representation to be true? Ans. Yes. (7) If you answer the first and third questions, or either of them, ‘Yes,’ did the plaintiff, in making the trade, rely upon such representation as true? Ans. Yes. (8) If you answer the last question ‘Yes,’ then ought the plaintiff, in the exercise of ordinary care and prudence, as an ordinarily intelligent man, to have relied upon such representation as true? Ans. No. (9) If you answer the first and third questions, or either of them, ‘Yes,’ then did the plaintiff have any knowledge or information of the actual character and condition of the dam, other than the defendant's representation concerning the same, upon which he relied in making the trade? Ans. No. (10) At the time the plaintiff and defendant visited the dam on or about January 20, 1891, was the dam so covered by water and ice that with the use of reasonable diligence the plaintiff could not make personal examination of the same, and ascertain its actual character and condition? Ans. Yes. (11) If you...