Ohrmundt v. Spiegelhoff

• Decision Date: 18 October 1921
• Citation: 175 Wis. 214,184 N.W. 692
• Parties: OHRMUNDT v. SPIEGELHOFF.
• Court: Wisconsin Supreme Court

175 Wis. 214

184 N.W. 692

OHRMUNDT

v.SPIEGELHOFF.

Supreme Court of Wisconsin.

Oct. 18, 1921.

Appeal from Circuit Court, Dodge County; Martin L. Lueck, Judge.

Action by Herman Ohrmundt against John Spiegelhoff to recover damages sustained by the plaintiff by reason of false representations made by the defendant as to the quantity of land and quality of soil of a plat of ground and dwelling house traded by him for plaintiff's farm. Verdict for plaintiff, assessing his damages at $2,400, and defendant appealed. Affirmed.Skinner & Thauer, of Watertown, and Charles B. Rogers, of Ft. Atkinson, for appellant.

Otto Kuenzli, of Watertown, for respondent.

VINJE, J.

This is the third trial of the case. The first trial in Jefferson county resulted in a verdict of $500 for plaintiff. Upon defendant's motion the verdict was set aside and a new trial granted, and a change of venue had to Dodge county. On the second trial the jury failed to agree. A number of false representations in addition to those mentioned were alleged in the complaint and testified to, but the two mentioned are the most material ones, and if sustained by the evidence would warrant the verdict rendered, and require an affirmance of the judgment, unless prejudicial error in the trial requires its reversal.

[1] Some evidence was received as to the value of the farm traded for the Watertown house and ground, but after a colloquy between court and counsel it was stricken out. Defendant claims it was not all stricken out, and that other evidence as to the value of the farm came in over his objection, and a number of assignments of error on this ground are argued. The evidence was admissible, and should not have been stricken out. It appears that plaintiff's equity in the farm was worth between $4,000 and $5,000. It was incumbent upon him to establish, not only that false representations had been made to him, but that he relied upon them in making the trade. If he can show that he parted with a consideration equal to the value of the premises received in trade as represented by the defendant, it is pretty persuasive proof that he relied upon the representations. Thus, if land is worth $100 per acre, and A. claims B. pointed out a tract that contained three acres, but B. claims he pointed out only a two-acre tract, the fact that A. paid him $300 is strong evidence that he relied upon B.'s representations as to quantity. If the proof showed he paid only $200, the jury might well say that no reliance was placed upon the representations that there were three acres, or that such representations were never in fact made. Since such proof was admissible in evidence, all assignments of error predicated upon its wrongful retention or admission fall.

[2] Plaintiff testified that defendant told him there were 4 1/2 acres in the city tract; that looking from the barn the second fence therefrom, and not the first fence, through which there was a gate, was the boundary of the property, whereas, in fact, the tract contained only about 2 1/2 acres, and the first fence was the boundary. Defendant denies this testimony, but there is nothing in the evidence from which we can say the jury erred in finding for the plaintiff, so the finding must stand. That the representations made as to quantity of land were of such a character and made under such circumstances as to authorize the purchaser in relying upon them is established by abundant authority in this state. Bird v. Kleiner, 41 Wis. 134;Tyner v. Cotter, 67 Wis. 482, 30 N. W. 782;Davis v. Nuzum, 72 Wis. 439, 40 N. W. 497, 1 L. R. A. 774;Middleton v. Jerdee, 73 Wis. 39, 40 N. W. 629;Castenholz v. Heller, 82 Wis. 30, 51 N. W. 432;Gunther v. Ullrich, 82 Wis. 222, 152 N. W. 88, 33 Am. St. Rep. 32;Porter v. Beattie et al., 88 Wis. 22, 59 N. W. 499;Nelson v. Allen, 117 Wis. 91, 93 N. W. 807;Westra v. Roberts, 156 Wis. 230, 145 N. W. 773.

[3] Plaintiff also testified that defendant told him the soil of the city tract was very fertile and well adapted for a market garden. It was quite conclusively shown that the soil consisted of a black clay or muck, that was not fertile, and would cake and harden in dry weather, and be impossible to work in wet weather. Defendant meets this charge by saying that no such representations were made, and that, since plaintiff examined the premises, he had no right to rely upon the statements, if made. Upon conflicting evidence the jury had a right to find that the alleged representations were in fact made. The evidence also shows that plaintiff visited the premises only once before the trade was made, and that it was some time in March, when there was snow, ice, and water upon the ground, and plaintiff claims it was not possible to examine the soil, and he did not do so, but relied upon the defendant's representations as to its quality. The jury could properly find that there was no opportunity for adequate examination as to the quality of the soil. Under such circumstances the purchaser may rely upon the representations in respect thereto made by the seller. Rogers v. Rosenfeld, 158 Wis. 285, 149 N. W. 33;Miranovitz v. Gee, 163 Wis. 246, 157 N. W. 790, and cases cited supra.

[4] Error is assigned because the court at the close of the evidence granted a view of the premises over defendant's objection. A view is had for the purpose of enabling the jury to understand and correctly weigh the evidence. Washburn v. Milwaukee & Lake Winnebago R. R. Co., 59 Wis. 364, 18 N. W. 328;Munkwitz v. Chi., Milwaukee & St. P. R. Co., 64 Wis. 403, 25 N. W. 438;Seefeld v. Chi., Milwaukee & St. P. R. Co., 67 Wis. 96, 29 N. W. 904. If the evidence is conflicting, the view may be used to aid the jurors in determining whose evidence is the more credible. Washburn v. Chi., Milwaukee & St. P. R. Co., 59 Wis. 364, 18 N. W. 328;Seefeld v. Chi., Milwaukee & St. P. R. Co., 67 Wis. 96, 29 N. W. 904. Here the evidence as to the value of the city tract was conflicting, and the court properly permitted a view, to enable the jurors to more correctly weigh...