Larson v. Splett

• Decision Date: 05 October 1954
• Parties: Harold LARSON et al., Appellants, v. Edward SPLETT et al., Respondents.
• Court: Wisconsin Supreme Court

Page 181

66 N.W.2d 181

267 Wis. 473

Harold LARSON et al., Appellants, v. Edward SPLETT et al., Respondents.

Supreme Court of Wisconsin.

Oct. 5, 1954.

Action by plaintiffs Harold Larson and Stella Larson against defendants Edward Splett and Rose Splett for damages allegedly sustained as the result of fraud in connection with the sale by defendants to plaintiffs of a farm in Monroe county, Wisconsin. After the evidence was in defendants moved for a directed verdict. The trial court granted the motion and from a judgment dismissing plaintiffs' complaint, plaintiffs appeal.

The facts will be stated in the opinion.

Clark & Kenyon, Tomah, Hale, Skemp, Nietsch, Hanson & Schnurrer, La Crosse, for appellants.

Donovan, Gleiss, Goodman, Breitenfield & Gleiss, Sparta, for respondents.

MARTIN, Justice.

Plaintiffs' complaint alleges damages as the result of misrepresentation, fraud and deceit by defendants in the sale of the farm, in that (1) the cattle were infected with brucellosis, (2) the machinery was not in working condition, (3) one of the sows was not bred, and (4) certain portions of the land were not tillable.

The elements of fraud are stated in International Milling Co. v. Priem, 1923, 179 Wis. 622, 624, 192 N.W. 68, as follows:

'To be actionable, the false representation must consist, first, of a statement of fact which is untrue; second, that it was made with intent to defraud and for the purpose of inducing the other party to act upon it; third, that he did in fact rely on it and was induced thereby to act, to his injury or damage. [Citing cases.]'

It is well established that fraud must be proven by clear and satisfactory evidence. Bowe v. Gage, 1906, 127 Wis. 245, 106 N.W. 1074; Richards v. Millard, 1911, 146 Wis. 552, 131 N.W. 365; Milwaukee Worsted Mills v. Winsor, 1914, 157 Wis. 538, 147 N.W. 1068; Putterman v. Goldman, 1928, 197 Wis. 233, 221 N.W. 650. In granting defendants' motion to direct the verdict, the trial court was of the opinion that sufficient evidence had not been presented to establish a case resting on fraud. With this we agree.

Plaintiff Harold Larson is 44 years old and has been a farmer all his life. Just previous to buying the farm in question he operated a farm in Vernon county where he had a certified herd of cattle. He visited the Splett farm on three occasions before he agreed to purchase it. On each occasion he saw the cattle and said they 'looked good.' On the first visit he inquired whether the defendants' cows were free from disease or a good herd and Splett said, 'They are a good herd as far as I know.' The second time he asked if they had any trouble with brucellosis and Splett said no. On the third occasion he told Splett he wanted to know for sure before he bought the farm that the cattle were safe and Splett replied that he didn't need to worry, they were good cows. Larson testified that he knew the way to find out whether cows have Bang's disease is to test them, but he did not ask Splett to test them. He knew it was not a tested herd when the sale was made. He took possession of the farm on February 28, 1951 and the sale was closed about March 1, 1951.

Plaintiffs contend that the cows were diseased prior to the sale and that defendants had knowledge of that fact when the cows were represented as being a 'good herd' and free from disease.

Larson testified that on March 16, 1951 one of the cows gave birth to a sick calf and he called a veterinarian. The calf died and Larson buried it. When the veterinarian came Larson was not there and he never talked to him about the condition of the cow. The veterinarian was not produced on the trial. Larson testified:

'Q. And you never inquired after that what that cow had? A. No.

'Q. So you don't know at this time what the cow had, do you? A. No.'

The following testimony by Larson is with respect to an alleged abortion in June, 1951 'He had marked down some cows that was supposed to be in in May, but those cows didn't come in and they was almost dry, so one night she came in, she looked like something happened to her. I can't prove she wasn't bred. The next day or the third day it was she came around. I took the animal, took care of her. Then she didn't show up any more. It must have been I guess two months or so, then she came around. I went out again and I told Ed. I looked around for another animal, but in the meantime in August she had a fall. I called him in and he made two trips. Nothing showed up. * * * it went on I guess way in May before I got the use of that cow.'

'There was one cow and that done it most of that year until in May, but she lost her calf in the spring, it was late that year when I bought, and then in May she came right around again. I called Ed up, told him 'Ed come down here' and they saw that cow in the barn. I told him I thought the cow lost another calf and it was five and a half months since it was bred. Ed was there and saw the cow * * *.'

This is the entire testimony referred to as the June abortion. It is not clear that both excerpts refer to the same cow, but in any event there is no showing that Bang's disease was the cause of the abortion. Nor is this evidence sufficient to charge the defendants with knowledge that their herd was infected in March.

On August 10, 1951 a cow aborted and Larson called in Dr. C. J. Hodulik who testified that he made a blood test on the cow and 'assumed it was Bang's disease,' and that he attended the Larson cattle three or four more times in the following few months for the same purpose. On cross-examination he testified that although he 'assumed' the cow and Bang's disease, the abortion could have been caused by some other condition. He stated that the cattle could have been a good herd in March 1951 and be infected with the disease in August 1951.

There is considerable testimony as to cows coming in heat frequently, aborting and being low in milk production, all of which, plaintiffs argue, are symptoms of Bang's disease. But the evidence does not show that these incidents were probably occasioned by brucellosis rather that any other possible cause. Larson stated that he knew nothing about Bang's disease except that the way to determine whether cattle had it was to test them. While Dr. Hodulik said he assumed that the cow he examined in August had the disease, that statement carries little weight in the light of his admission that some other condition may have been the cause of the abortion. In order to find for the plaintiffs the jury would have had to base its verdict on speculation. There is not sufficient evidence to support a finding that Bang's disease was the cause of the abortions or other conditions complained of. The record does no more than...