Lockwood v. Allen

• Decision Date: 11 March 1902
• Parties: LOCKWOOD v. ALLEN.
• Court: Wisconsin Supreme Court

113 Wis. 474

89 N.W. 492

LOCKWOOD

v.ALLEN.

Supreme Court of Wisconsin.

March 11, 1902.

Appeal from circuit court, Barron county; A. J. Vinje, Judge.

Action by George J. Lockwood against John G. Allen. From a judgment for plaintiff, defendant appeals. Affirmed.

Action to rescind a conveyance of land alleged to have been made under such circumstances as to constitute a fraud upon the plaintiff. The defendant was a real estate dealer living in St. Paul. The plaintiff was a farmer residing at Northfield, Minn. In December, 1899, the plaintiff entered into negotiations with the defendant through his agent, Merritt Moore, with a view of purchasing a tract of farming land in this state. Plaintiff and Moore went to St. Paul, saw defendant, and told him the kind of land the plaintiff desired to purchase. Defendant directed plaintiff to go to Cumberland, Wis., to view lands he had for sale near that place, and informed him that his agent, Jos. Hennen, would take him to view such lands. Pursuant to such directions, plaintiff and Moore went to Cumberland. Plaintiff informed the agent, Hennen, that he desired to purchase 160 acres of timber land near a lake suitable for farming purposes. Hennen informed plaintiff that the N. W. 1/4 19--36--12 W. answered the description, and with plaintiff and Moore went out to view the lands. Instead of taking them to view the lands in section 19, he showed them lands in section 24, which were fertile, well-timbered, and such as the plaintiff desired. He never took them within sight of the lands in section 19. The northwest quarter of section 19 was rough, sandy, swampy, had little or no timber on it, and was of little value. The agent, Hennen, knew that the statements made plaintiff as to location, value, and condition of the lands in section 19 were false, and made the same with intent to induce the plaintiff to make a purchase thereof. On February 14, 1900, plaintiff, relying upon such representations, purchased said northwest quarter of section 19 for $1,520, paying $920 cash, and gave notes and a mortgage on the land for the remainder of the purchase price. Plaintiff knew nothing about the location of said land or of its condition except such information as he got from the agent, Hennen, and fully believed, when he made the purchase, that he had been shown the same. He still holds the title as he received it, and, upon learning the true value and location of the lands, he notified the defendant of his desire to rescind such purchase, offered to deed the land, and demanded a return of the money paid, and a surrender and cancellation of his notes and mortgage, which defendant refused. The foregoing are substantially the facts as found by the trial court, and upon which he directed a judgment of rescission of such deed on condition that the plaintiff reconvey such lands to the defendant. A demurrer ore tenus to the complaint was overruled. Due exceptions to the findings were filed by defendant, and from the judgment for plaintiff he takes this appeal.Harold Harris and T. M. Thorson, for appellant.

William N. Fuller, for respondent.

BARDEEN, J. (after stating the facts).

1. The defendant argues that the complaint is insufficient, as not containing allegations showing the agency of Hennen, or of injury resulting from the alleged misrepresentations, or of ability to reconvey the land. We are satisfied that none of these complaints are well founded. The allegations of Hennen's agency are direct and unequivocal, and were fully supported by the evidence. The averments as to injury are not so definite. The land shown to plaintiff is alleged to have been fertile and well-timbered, while the land he received was “rough, stony, hilly, swampy, and timberless.” The complaint might have been more definite in this regard, but, under the rule that pleadings must be liberally construed under circumstances like these, we cannot say that it is insufficient. When one supposes he is bargaining for fertile timber lands, and gets lands that are without timber, and which are rough, stony, and swampy, it requires no stretch of judicial inference to assume that he was injured thereby. The complaint further shows an offer to reconvey the land, and that such offer is still held good. The fair inference from such offer is that he had the ability to reconvey.

2. The defendant...