Lotter v. Knospe

• Decision Date: 10 January 1911
• Parties: LOTTER v. KNOSPE.
• Court: Wisconsin Supreme Court

144 Wis. 426

129 N.W. 614

LOTTER

v.KNOSPE.

Supreme Court of Wisconsin.

Jan. 10, 1911.

Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Action by Henry G. Lotter against E. B. Knospe, doing business as, etc. From a judgment for plaintiff, defendant appeals. Affirmed.Curtis & Mock and Andrew Gilbertson, for appellant.

Arthur A. Mueller and Sheridan & Mueller, for respondent.

BARNES, J.

The court found that the plaintiff and defendant made a verbal contract by which plaintiff agreed to buy the defendant's stock of merchandise and book accounts, provided that the stock should not inventory to exceed $7,000 and the book accounts should not exceed $6,000. A payment of $1,000 was made on the purchase price three days after the oral agreement had been reached. A receipt was given plaintiff for such payment, which also recited, in detail, various provisions of the verbal contract, but omitted any reference to that portion of it making the sale conditional on the amount of the stock and the value of the book accounts. The inventory disclosed that the stock amounted to $18,000 and the book accounts to $11,000. The plaintiff refused to carry out the contract, and nine days after payment thereof demanded a return of the money advanced by him, and suit for recovery was begun a few days after the demand was made, which resulted in judgment in plaintiff's favor.

The appellant contends that it was the legal duty of the plaintiff to read the alleged receipt that was handed to him, and that he was chargeable with knowledge of its contents whether he read it or not, and that, knowing its contents, he assented thereto by his failure to advise the defendant that he repudiated the instrument because it did not correctly embody the oral agreement. In support of these contentions, the cases of Bostwick v. Insurance Co., 116 Wis. 392, 89 N. W. 538, 92 N. W. 246, 67 L. R. A. 705, and Ripley v. Sage L. & I. Co., 138 Wis. 304, 119 N. W. 108, 23 L. R. A. (N. S.) 787, as well as some others, are relied on. These two cases come nearer sustaining the appellant's view than any others that have been cited, and the question is: Does the case at bar fall within the principle of these decisions?

The plaintiff in the Bostwick Case brought an action to recover the premiums paid on a policy of life insurance because of a fraud perpetrated by the agent of the insurer in making out the application for a different kind of a policy from that agreed upon. The kind of policy described in the application was issued and the policy was retained severalmonths before the plaintiff examined the same or the letter which accompanied it, and therefore he did not discover the fraud. It was held that a person who receives from another a written instrument containing a statement of their...