Lange v. Heckel

• Decision Date: 13 January 1920
• Citation: 171 Wis. 59,175 N.W. 788
• Parties: LANGE ET UX. v. HECKEL ET AL.
• Court: Wisconsin Supreme Court

171 Wis. 59

175 N.W. 788

LANGE ET UX.

v.HECKEL ET AL.^a1

Supreme Court of Wisconsin.

Jan. 13, 1920.

Appeal from Municipal Court of Brown County; N. J. Monahan, Judge.

Action by Gustave Lange and wife against Frank S. Heckel and others. Judgment for plaintiffs, and defendants Heckel and Passowicz appeal. Affirmed.

Eschweiler, J., dissenting.

Action to recover damages resulting from a conspiracy. The following facts are undisputed: The plaintiffs are husband and wife, of Polish nationality, unsophisticated in business transactions, speak the English language poorly, and write it not at all. They owned a little 40-acre farm, situated about a mile from the village of Pulaski, which had been their home for a number of years. The defendant Heckel owned a two-story frame building in the village of Pulaski. For some time prior to the 21st day of June, 1915, this property had been listed with the defendant Dominiczak, a real estate agent, for sale without success. On the morning of the said 21st day of June, Heckel told Dominiczak that if he did not dispose of the property that day he would place it in the hands of another real estate agent. Dominiczak determined to trade the property for the Lange homestead, and called to his assistance the defendant Passowicz, who lived on a farm between three and four miles from Pulaski and at times worked with Dominiczak in making real estate deals. About 3 o'clock in the afternoon Dominiczak drove out to the Lange homestead. Mrs. Lange was at Pulaski. He talked with Lange about a trade of the farm for the store property. Lange went to Pulaski with him. They met Passowicz, and went into a saloon and had one or two drinks of whisky. Mrs. Lange was found, and they examined the store building. Heckel joined the party, and they talked trade. Lange said he would trade his farm, machinery, and personal property for the store building and $1,000 to boot. The five got into an automobile and went out to the farm, ostensibly to look over the personal property. At least four quart bottles of beer were taken along. The beer was consumed, the details of a trade talked over, a notary public was brought from Pulaski, and he prepared a contract by the terms of which the Langes were to trade the farm for the store property and $500 to boot. The deal was to be completed in 30 days, and if either party breached the contract $500 was to be paid to the other. To secure the payment of the $500 the Langes executed their note for that amount, payable to Dominiczak and Passowicz. All papers were signed by the Langes by their marks. That night Mrs. Lange was so sick as the result of drinking the beer that a doctor had to be called. In the morning, after reading the contract Lange immediately went to Pulaski and took the train for Green Bay to see a lawyer. Dominiczak, learning of this, hastened to Green Bay to see the lawyer (whom he knew Lange would consult) before Lange reached him. The lawyer declined to give Lange any advice, and Lange returned home. Soon after his return home Mrs. Passowicz, wife of defendant Passowicz, called at the Lange place, and soon thereafter Heckel and Dominiczak drove up. They demanded immediate payment of the $500, threatened to sue the Langes if it was not paid and threatened them with loss of their farm. After much discussion, a notary public was again brought out from Pulaski. Lange and his wife executed their note to Heckel for $300, secured by mortgage on the farm, and all papers previously executed were destroyed. Heckel sold the note and mortgage to the Seymour State Bank, and divided the proceeds with Dominiczak and Passowicz, the latter receiving $70. Upon the maturity of the note, foreclosure proceedings were instituted by the Seymour State Bank, which the Langes settled by giving a new note and mortgage for $469.00.

As already stated, the above facts appear without dispute. In addition to these facts, the Langes claimed that the defendants represented that the store building at Pulaski rented for $35 per month. It is conceded that it did not rent for such amount, but defendants deny having made the representation. The Langes further claimed that they never agreed to trade for $500 to boot; that that provision of the contract was never agreed to by them, but was surreptitiously inserted. They further claimed that they never agreed to pay $500 in case of their failure to fulfill the contract, and that they did not know that they were signing a $500 note to Dominiczak and Passowicz. They also claimed that they were so intoxicated by reason of drinking the beer and whisky furnished by the defendants that they were incapable of transacting business, and did not know what they were doing.

The jury returned the following special verdict: (1) That the defendants Passowicz, Dominiczak, and Heckel conspired to defraud plaintiffs; (2) that the defendants in carrying out said conspiracy secured from the plaintiffs the land contract in question; (3) that the defendants in carrying out said conspiracy and in furtherance of it secured from the plaintiffs the $300 note and mortgage in question; and (4) that the giving of the $300 note and mortgage in question was not agreed upon by the plaintiffs as a settlement in full of this cause of action.

Upon this verdict judgment was rendered in favor of the plaintiffs and against the defendants for the sum of $469, and from that judgment the defendants Passowicz and Heckel appealed. Dominiczak did not appear in nor defend the action.

Sol. P. Huntington, of Green Bay, for appellant Heckel.

Kaftan & Reynolds, of Green Bay, for appellant Passowicz.

Martin, Martin & Martin, of Green Bay, for respondents.

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

[1][2] It is the major contention of appellants that the verdict is not supported by the evidence. The gist of the action is embodied in the first question of the special verdict, by which the jury found that two or more of the defendants conspired to defraud plaintiff by securing the land contract in question. The answer to this question was pursuant to an instruction that the burden of proof to support an affirmative answer was upon the plaintiffs to establish the truth thereof by clear and satisfactory evidence to a reasonable certainty. In view of the fraudulent object of the conspiracy, this was a correct statement of the degree of proof required of plaintiffs to establish their cause of action. Appellants challenge the sufficiency of the proof tested by this rule. The record has been examined with care, and we are satisfied that the conclusion of the jury is neither rash nor hazardous, but, on the contrary, is a very natural inference to draw from all the facts and circumstances disclosed by the evidence.

[3] We scarcely need refer to the fact that proof of conspiracy almost ex necessitate must rest upon circumstantial evidence. Conspiracy is a line of endeavor the success of which is not promoted by advertising. Direct proof of the illegal combination is generally locked within the breasts of the conspirators, and the ultimate fact of the corrupt agreement, if proved at all, must be inferred from established facts and circumstances.

Examining the facts and circumstances supported by the evidence, we find that the defendant Heckel was the owner of a store building, in the village of Pulaski, in a more or less precarious state of repair and usefulness. He had been wanting to dispose of the property for some time, and had it listed for sale with the defendant Dominiczak, a real estate agent, without results. Suddenly, on the morning of June 21st, so the evidence goes, Heckel told Dominiczak that if he did not sell or trade the property that day he would place it in the hands of another agent. This was a rather peremptory and brusque ultimatum, in view of the fact that there is a limited clientele for village property of this character. However, Dominiczak accepted the challenge and got busy. He laid his plans for an intensive campaign. The Lange farm was his objective. Lange had never manifested a desire or disposition to trade his farm, the only kind of property he had real use for, for a run-down village store building, for which he had no use whatever. But the redoubtable Dominiczak was not dismayed. He laid out his campaign. He called Passowicz to his assistance. Passowicz was a farmer living between three and four miles from Pulaski. He sometimes dickered in real estate, and had helped Dominiczak in a few deals. Dominiczak needed his help then. Passowicz testified:

“Dominiczak told me to come in. He told me ‘Heckel was going to trade the store.’ He says, ‘I have a nice little farm;’ and he told me Lange's place.”

The record is silent as to the greeting extended Passowicz upon his arrival at Pulaski, or as to what instructions he received from Dominiczak, or the commission with which he was invested in carrying out the plan of campaign. That he was to play a responsible and important part in the offensive activities, however, may be inferred from the fact that he expected $75 for his day's work, and was subsequently paid $70. We can judge of the plan of campaign agreed upon only by the subsequent happenings of the day. It seems that it contemplated an offensive against the Lange farm and, by a skillful deploying and arranging of forces, such an investment thereof as to compel the beleaguered ones to capitulate upon terms to be dictated by the offensive forces. Along in the afternoon, while Mrs. Lange was “down town,” Dominiczak, casually like, dropped out to the Lange farm. He found Lange alone. In due course a trade was suggested. Lange was taken in the automobile and conveyed to town. They pulled up in front of a saloon. As a mere coincidence, Passowicz was there. Lange was taken inside, and treated to whisky, one or two drinks. Mrs. Lange was found and the store was examined. They were told of its rental value, and that they could make more out of the rent of the...