Mann v. Becker

• Decision Date: 09 March 1920
• Citation: 176 N.W. 765,171 Wis. 121
• Parties: MANN ET AL. v. BECKER.
• Court: Wisconsin Supreme Court

171 Wis. 121

176 N.W. 765

MANN ET AL.

v.BECKER.

Supreme Court of Wisconsin.

March 9, 1920.

Appeal from Circuit Court, Milwaukee County; Edgar V. Werner, Judge.

Action by Peter Mann and another against Robert J. Becker. From a judgment for plaintiffs, defendant appeals. Affirmed.

The cases cited by respondents relative to Sunday torts, to which reference is made in the opinion, are as follows: Grant v. McGrath, 56 Conn. 333, 15 Atl. 370;Gunderson v. Richardson, 56 Iowa, 56, 8 N. W. 683, 41 Am. Rep. 81;Robeson v. French, 12 Metc. (Mass.) 24, 45 Am. Dec. 236;Blakesley v. Johnson, 13 Wis. 530, 534;Sutton v. Town of Wauwatosa, 29 Wis. 21, 26, 9 Am. Rep. 534;Melchoir v. McCarty, 31 Wis. 252, 256, 11 Am. Rep. 605;McArthur v. Green Bay & Mississippi Canal Co., 34 Wis. 139, 150;De Forth v. Wisconsin & Minnesota Railroad Co., 52 Wis. 320, 325, 9 N. W. 17, 38 Am. Rep. 737;Taylor v. Young, 61 Wis. 314, 323, 21 N. W. 408;Schmidt v. Thomas, 75 Wis. 529, 530, 44 N. W. 771;Hopkins and others v. Stefan, 77 Wis. 45, 45 N. W. 676;Williams et al. v. Lane et al., 87 Wis. 152, 158, 58 N. W. 77;Gabbert v. Hackett, 135 Wis. 86, 115 N. W. 345, 14 L. R. A. (N. S.) 1070;King v. Graef, 136 Wis. 548, 117 N. W. 1058, 20 L. R. A. (N. S.) 86, 128 Am. St. Rep. 1101;Gerretson v. Rambler Garage Co., 149 Wis. 528, 532, 136 N. W. 186, 40 L. R. A. (N. S.) 457;Webster Mfg. Co. v. Montreal River L. Co., 159 Wis. 456, 459, 150 N. W. 409;Zielica v. Worzalla, 162 Wis. 603, 607, 156 N. W. 623.

Action to recover damages sustained by reason of false and fraudulent representations made by the defendant as to the quality of lumber and workmanship in a duplex flat purchased from him for $6,000. Plaintiffs' claims are: (1) Defendant represented that no old lumber was used in the flat, whereas the fact was that more than 7,000 feet of old lumber were used; (2) defendant represented that the flat was built in a workmanlike manner, whereas the fact was that it was not, but was built in a defective manner. A jury was waived and the action was tried by the court, with the result that it found for the plaintiffs as to both claims and assessed their damages at $800. From a judgment entered accordingly the defendant appealed.Paul D. Carpenter, of Milwaukee, for appellant.

Schoetz, Williams & Anderson, of Milwaukee, for respondents.

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

The printed case contains over 200 pages of evidence, mostly in the form of question and answer instead of in the narrative form as required by the practice of this court. It is conceded that appellant's attorney has at least a partial excuse for not complying with the requirements of the court in this instance, and is therefore not subject to the criticism he otherwise would be. But the court deems it best to allude to the matter to the end that there may be fewer infractions of the rule in future.

We have carefully examined the evidence both as to the amount of old lumber used in the construction of the flat and as to the defective workmanship therein and are satisfied that it sustains the findings of the trial judge. Indeed, there is evidence to sustain an assessment of damages in excess of that found by the court. It follows that the amount found is fair and just to defendant and cannot be set aside by this court as excessive.

It is admitted that oral negotiations resulting in a sale took place on Sunday, April 25, 1915, and on that day this receipt, dated the next day, was given:

“Milwaukee, Wis., April 26, 1915. Received of Peter Mann twenty dollars ($20) as security to apply on purchase price. Price of flat is six thousand dollars ($6,000). Robert J. Becker, 2214 Keefe Ave.”

No. 2214 Keefe avenue was the residence of Mr. Becker and was not the...