Noble v. Libby

• Decision Date: 31 January 1911
• Citation: 144 Wis. 632,129 N.W. 791
• Parties: NOBLE v. LIBBY.
• Court: Wisconsin Supreme Court

144 Wis. 632

129 N.W. 791

NOBLE

v.LIBBY.

Supreme Court of Wisconsin.

Jan. 31, 1911.

Appeal from Circuit Court, Winnebago County; George W. Burnell, Judge.

Action by Walter W. Noble against Charles A. Libby. Judgment for plaintiff, and defendant appeals. Reversed and remanded.Gruenewald, Jackson & Gruenewald, for appellant.

B. E. Van Keuren, for respondent.

TIMLIN, J.

It might be said of this case: “Confusion here hath found its masterpiece.” From the drafting of the complaint through the trial in the court below up to the final argument in this court such uncertainty exists that the counsel for plaintiff and respondent is unable to state the nature of the action, insisting that it may be an action for money had and received, an action at law to recover damages for breach of contract, or an action in equity, while the trial court at the opening of the trial first declared it an action in tort. After the trial had made considerable progress he declared he did not know whether it was an action in tort or upon contract, and at the close of the evidence of the plaintiff on motion for nonsuit ruled as follows: “Yesterday I was inclined to think after reading it only once that it was an action in tort. To-day I do not find a single allegation in it that is characteristic of an action ex delicto. I am clearly of the opinion now that the complaint is upon implied contract.” But later on he instructed the jury as follows: “In this case there is really but one question for you to determine: Did the plaintiff rely entirely upon the defendant in the selection and entry of the lands in question?” At request of plaintiff he instructed: “If the representations made by the defendant to the plaintiff were material and false, and the plaintiff did not know, or have present means of knowing, that they were false, and the plaintiff relied upon them as being true, and the defendant knew this, and the plaintiff suffered damages thereby, it is immaterial whether the defendant made the representations willfully or intentionally or not; for he had no right to make even a mistake in facts so material to the contract, except under the penalty of responding in damages.” He also, at request of defendant, instructed the jury as follows: “The plaintiff in this action cannot recover anything from the defendant unless you find that the defendant, or his agent, made false representations to the plaintiff. The plaintiff cannot recover in this action unless you find he actually relied upon the false representations of fact made by this defendant. The plaintiff cannot recover in this action unless you find that because of the defendant's misrepresentations, or those of his agent, the plaintiff parted with his money. To entitle the plaintiff to recover in this action, it must at least be shown from the evidence that the plaintiff has paid something to the defendant, or his agent, which in equity and good conscience he ought to return. There is in this case no question of fraud on the part of the defendant. Plaintiff does not complain or charge the defendant himself with any fraud or deceit in this case. Unless the proof shows to your satisfaction that the defendant, or his agent, made some false representations to the plaintiff upon which the plaintiff relied, and had a right to rely upon under other instructions given the jury, the plaintiff cannot recover in this action.” He also told the jury if they found for the plaintiff they must assess the damages at $350.

Notwithstanding this confusion, we are to search the pleadings and evidence, and, if a right of recovery upon any ground exists, permit the plaintiff to assert that right and the defendant to interpose against such assertion any legitimate defense he may have. The plaintiff as a witness acquitted the defendant of any fraud in the matter. His testimony showed that he paid no money to the defendant, so that the right of recovery for deceit and that of recovery for money had and received both dropped out of the case, the former because there was no intentional deceit, and the latter because the plaintiff had paid the defendant no money. But it is contended that the judgment may be supportedas a judgment for damages for breach of contract. The charge above quoted would be quite erroneous in such an action. The only contract which the evidence in any wise tends to support is a contract of service; that is to say, the defendant should perform services for the plaintiff in aiding the latter to locate government land. The evidence is quite weak and unsatisfactory with reference to any contract of employment, but there may be enough to take the case to the jury on this ground. This evidence tends to show that the defendant, answering a newspaper advertisement, was directed to one Taylor, with whom he had no previous acquaintance. Taylor professed to know of valuable timber lands which might be entered under the so-called stone and timber act (Act June 3, 1878, c. 151, 20 Stat. 89 [U. S. Comp. St. 1901, p. 1545]). The defendant undertook without any express agreement for compensation to aid the plaintiff in locating some government land under this act. The plaintiff informed the defendant that he (plai...