Miranovitz v. Gee

• Decision Date: 02 May 1916
• Citation: 157 N.W. 790,163 Wis. 246
• Parties: MIRANOVITZ ET AL. v. GEE ET AL.
• Court: Wisconsin Supreme Court

163 Wis. 246

157 N.W. 790

MIRANOVITZ ET AL.

v.GEE ET AL.

Supreme Court of Wisconsin.

May 2, 1916.

Appeal from Circuit Court, Wood County; Byron B. Park, Judge.

Action by Ben Miranovitz and another against Harvey Gee and another to rescind a contract for the purchase of realty. Judgment for plaintiffs, and defendants appeal. Affirmed.

Action by vendees to rescind contract for the purchase of certain real estate. Plaintiffs are Russian Jews, one being 30 and the other 25 years of age. They came to this country about 4 years ago, and on June 27, 1914, purchased certain lands and personal property of the defendants for $3,500, paid $800 down, gave a chattel mortgage for $600 on the personal property, and a mortgage for $2,100 on the real estate. Plaintiffs went into possession of the property, which they claimed was represented to them as worth $4,000, upon which there were certain stated amounts of crops growing, the soil being represented as fertile; that said representations were in fact untrue; that plaintiffs knew nothing about farming in this country, did not know how much land was included in an acre, and they supposed themselves to be represented by one Ginsberg as a friend and countryman, who was in fact the agent of the defendants and received a commission for making the sale to plaintiffs. The defendants denied the allegations of the complaint, and alleged that the plaintiffs were estopped from claiming a rescission of the contract by reason of the fact that plaintiffs had disposed of some parts of the personal property and had not made a sufficient tender back of the property received by them to entitle them to rescission. The trial court found for the plaintiffs, who had judgment rescinding the contract and awarding them $800, the amount of money paid down by them. From such judgment, defendants appeal.D. D. Conway, of Grand Rapids (Grady, Farnsworth & Kenney, of Portage, of counsel), for appellants.

Goggins, Brazeau & Goggins, of Grand Rapids, for respondents.

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

The defendants attack the findings on the ground that they are contrary to the great preponderance of the evidence. Briefly stated, the findings, so far as material, are as follows: Plaintiffs were uneducated and ignorant, and able to speak the English language very imperfectly, were entirely ignorant of farm land values, the care or value of stock or machinery, or the measure of land, and of every other matter connected with farming or farm life, and prior to the day on which the transaction was concluded had never been in Wood county, where the land was situated, and knew nothing about lands or land values in the vicinity of the city of Grand Rapids, or of the character of the soil, and had never had any experience in farming; that plaintiffs came to the city of Grand Rapids and applied to one Jacob Ginsberg, a fellow countryman, who assured the plaintiffs that he was well acquainted with real estate in the vicinity of Grand Rapids, that he would give them a good deal and that they could trust him and depend upon him in making a fair transaction for them; that the defendants on June 27, 1914, were the owners of the property in controversy; that the land, 40 acres in extent, had been used for many years without fertilization or care, was sandy land, of which 25 acres were cleared, and with the exception of 6 or 8 acres greatly run down and of little fertility, and incapable of producing good crops, all of which was known to Ginsberg and the defendants; that the 40 acres of land in question, together with the buildings thereon, was worth on the 27th day of June, 1914, not to exceed $1,800, the personal property not to exceed $1,000, and the crops growing thereon not to exceed $200, a total value not exceeding $3,000; that prior to June 27, 1914, the defendants had informed Ginsberg of their desire to sell the property in question, and that on that day he acted as the agent of the defendants and was paid $300 for his services; that on said 27th day of June the plaintiffs went upon the land in question, remained there about 45 minutes, were given a lunch, and were told by the defendants that there was sown and planted 7 acres of corn, 15 acres of rye, and 6 acres of potatoes; that plaintiffs went over the farm, and through the house and barn, and looked at the stock; that at the time of said visit the personal property was represented by Ginsberg to them as worth $1,200, the crops as being worth $500; that $30 per month could be made from the sale of milk; that the farm would produce 100 bushels of potatoes to the acre, and that there were 6 1/2 acres of potatoes, 7 acres of corn, and 18 acres of rye growing thereon, and that said farm, crops, and personal property were worth $4,000; that the plaintiffs relied on such statements, and would not have purchased, except for such representations; that there was in fact growing on the farm on the day in question not to exceed 15 acres of rye, 5 or 6 acres of corn, and 3 1/2 acres of potatoes, and that Ginsberg knew, at the time of making such representations as he did make, that they were false; that plaintiffs entered into a contract to purchase by which they were to pay $3,500 for the land, personal property, and crops, $800 being paid down, $600 being secured by chattel mortgage upon the personal property, and $2,100 by a mortgage upon the real estate in the usual form; that it was the duty of the defendants to disclose to the plaintiffs that the tillable land on such farm, with the exception of 6 or 8 acres, was so greatly run down as not to be in condition to produce any substantial crops, which fact could not be ascertained by the plaintiffs by any reasonable inspection; that the defendants in fact knew that the plaintiffs could not pay for said land, would be unable to raise or buy sustenance for the cattle and horses on the farm, and that the defendants did in fact on the 21st day of October, 1914, foreclose the chattel mortgage and take substantially all of the personal property from the plaintiffs; that proper tender was made, with demand for rescission of the contract; and certain other facts were found relating to an accounting not material here.

The plaintiffs had judgment, canceling and rescinding the contract, and the amount paid down by them, $800, was made a lien upon the premises, with interest from the 1st day of August, 1914, less the sum of $84.50 received by the plaintiffs from the sale of personal property. The case was very vigorously contested. The trial commenced on January 21, 1915, and closed the next day. The parties were directed to file briefs, which they did. There was a brief for the plaintiffs, a brief for the defendants, a plaintiffs' reply brief, and a rejoinder by the defendants. On March 12, 1915, the court filed its decision in writing, stating at considerable length the facts as found by him, and directed the plaintiffs' attorneys to prepare findings in accordance therewith and submit the proposed findings to defendants' attorneys. On March 12, 1915, the judge, in transmitting a copy of his decision to the attorneys in the case, accompanied the same with a letter in which he used the following language:

“All during the trial of this case I felt the utmost sympathy and compassion for the plaintiffs. My feeling for them was not greatly changed, although it was apparent Ben was lying whenever he saw a chance to lie.”

On April 26th, and before the findings were signed, the defendants made a motion requesting the court to reopen the case and take additional evidence. On June 1, 1915, there was a hearing on this motion. In disposing of the motion to reopen the case and present further testimony, the court said, in its decision handed down June 5, 1915:

“I listened carefully to all the affidavits when they were read in court. Since then I have gone over the entire case and have carefully read all the affidavits.”

The court carefully reviewed the matters presented on the hearing and denied defendants' motion. On June 19, 1915, defendants made a motion “to modify and supplement the findings heretofore made and filed in the above-entitled action and to substitute the annexed proposed findings for those found.” The motion was heard on August 7, 1915, and on the same day the court denied the motion, after carefully considering the propositions advanced by the defendants, and the findings signed as of the 5th day of June, 1915, became the findings of fact and conclusions of law in the case.

This case had the very careful and thorough consideration of the trial judge on three separate and distinct occasions, and each time the entire case became the subject of the trial court's consideration. He approached the matter in the beginning apparently with some doubts as to his duty in the premises, but a review of the record shows that at the time he finally disposed of the matter he did so under the clear and definite conviction that his disposition was right. We have carefully examined the evidence, and, while it is not free from troublesome questions, we are of the opinion that the trial court's conclusion is right, and we certainly cannot disturb the findings as contrary to the clear preponderance of the evidence.

We are urged to reverse the judgment, as not supported by the findings, for three reasons: (1) That the court erred in its conclusion that the facts found justified rescission. (2) That the court erred in its conclusion that the plaintiffs had not waived the right to rescind. (3) That the plaintiffs were not entitled to equitable relief, for the reason that they testified falsely upon the trial.

[1] Defendants argue that representations as to value, or mere failure to disclose certain facts, where there is no artifice or trick used to induce reliance or prevent investigation, in the absence of a confidential or fiduciary relation between the parties, cannot constitute the basis of an action for...