Pierce v. Stolhand

• Decision Date: 11 January 1910
• Parties: PIERCE v. STOLHAND.
• Court: Wisconsin Supreme Court

141 Wis. 286

124 N.W. 259

PIERCE

v.STOLHAND.

Supreme Court of Wisconsin.

Jan. 11, 1910.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by Emma J. Pierce against Hattie G. Stolhand. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions to render judgment for plaintiff.

This action was brought to recover on a $200 note given in part payment for services to be performed for defendant by way of instructions in dermatology. Under the agreement $300 was paid in cash and a note given for the balance of the agreed price of the instructions. The answer sets up fraud by way of false representations on the part of the plaintiff. A counterclaim was also pleaded setting up fraud and want of consideration and demanding recovery of $300 paid to plaintiff at the time of execution of the note. The case was tried by the court and a jury. Only three questions were submitted to the jury: (1) Falsity of the representations; (2) reliance upon them; (3) defendant's freedom from negligence. The court refused to submit the question of damages. The jury answered the three questions submitted in favor of the defendant. Plaintiff moved for a directed verdict, for judgment notwithstanding the verdict, and for a determination by the court of the issue of damages and other omitted issues, which motions were denied. Judgment was ordered for the defendant upon the verdict for $497, damages and costs; it was further ordered that plaintiff pay $10, costs of motion for judgment. Due exceptions were filed by the plaintiff. Judgment was entered, accordingly, in favor of the defendant, from which this appeal was taken.James D. Shaw, for appellant.

A. C. Umbreit, for respondent.

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

The execution and delivery of the note being admitted, the burden was upon the defendant to prove her defense and establish the counterclaim. The note bears date January 16, 1900, and it appears that it was given for services to be performed after its execution. The evidence tends to show that prior to the execution of the note the plaintiff was engaged in business in the city of Milwaukee as a dermatologist and receiving for her services $4 per hour; that defendant applied to her to be instructed in the art, and was informed by plaintiff that a course of instructions would cost $500. The defendant, thinking the price high, made some investigation upon the subject and conferred with a reputable physician of Milwaukee and returned to plaintiff and closed the contract by giving the note in question and paying $300 in cash. The defendant received instructions from plaintiff at various times covering a period of four or five months, and in June, 1900, began work as a dermatologist in the city of Chicago and remained there about a year, during which time only two patients called upon her for treatment. She then gave up the business and shortly thereafter had a talk with plaintiff, in which she said she could not pay the note, but made no claim that she had been defrauded. The alleged false representations complained of are that plaintiff represented that no one else could teach defendant, and that she could not get instructions elsewhere for less than $500; that plaintiff told defendant that she had...