Mamlock v. Fairbanks

• Decision Date: 25 March 1879
• Citation: 46 Wis. 415,1 N.W. 167
• Parties: BLUEMCHEN MAMLOCK, RESPONDENT, v. JAMES K. FAIRBANKS, APPELLANT.
• Court: Wisconsin Supreme Court

46 Wis. 415

1 N.W. 167

BLUEMCHEN MAMLOCK, RESPONDENT,

v.JAMES K. FAIRBANKS, APPELLANT.

Supreme Court of Wisconsin.

Filed March 25, 1879.

Appeal from circuit court, Milwaukee County.

E. P. Smith, for appellant.

R. N. Austin, for respondent.

ORTON, J.

--This action is brought to set aside the contract by which the plaintiff, by her agent, one Marcus Silber, purchased of the defendant a certain note and mortgage executed by one John F. Randall to one Joel E. Ackerman, and to recover back the purchase money therefor, on the ground of false and fraudulent representations made by the defendant to the agent Silber, at the time of the purchase, as to the adequacy of the mortgage security, and as to the responsibility, identity, and residence of the parties, which formed the inducement of the contract.

On the trial the agent Silber testified, that he did not rely upon the security of the mortgage, but upon the responsibility and credit of the parties; therefore, the material ground of the action was, the false statement of the defendant of the identity and residence of Randall and Ackerman. It appeared that the residence of both was stated in the formal parts of the mortgage, and a certificate of satisfaction accompanyingthe same, the former as being of the Town of Lind, of the County of Waupaca, and the latter as being of the Village of Waupun, Fond du Lac County, and that the mortgage was acknowledged by Randall and his wife, in Waupaca County. It appeared also, that at the time there was a man by the name of J. Randall residing in the County of Dodge, and a man by the name of J. Ackerman, a justice of the peace in said Village of Waupun, both men of good credit and responsibility, and known to be so by the agent Silber, and that he supposed they were the parties to said note and mortgage, and that when he asked the defendant if they were the parties to the note and mortgage, the defendant replied that they were; and it further appeared, that at the time of the purchase the agent Silber had the note and mortgage in his hand, and opened the mortgage; that there was nothing to prevent him from examining the papers; that he could read the English language; and that his brother examined the mortgage.

It was claimed at the trial for the defendant, that Silber had in his hands at the time, the papers which showed the residence of both Randall and Ackerman, and therefore knew, or might have known, the truth or falsity of the statement of the defendant as to such residence, and did not rely, or ought not to have relied upon, and was not misled, or ought not to have been misled, by such statement. It was admitted, that John F. Randall, the maker of the note and mortgage, was not said J. Randall, of the County of Dodge, and did not reside in that county, and the said Joel E. Ackerman was not a justice of the peace in the Village of Waupun. There seems to have been some evidence given upon the question as to whether the agent Silber knew, or had the...