Porter v. Beattie

• Decision Date: 25 May 1894
• Citation: 59 N.W. 499,88 Wis. 22
• Parties: PORTER v. BEATTIE ET AL.
• Court: Wisconsin Supreme Court

88 Wis. 22

59 N.W. 499

PORTER

v.BEATTIE ET AL.

Supreme Court of Wisconsin.

May 25, 1894.

Appeal from circuit court, Columbia county; R. G. Siebecker, Judge.

Action by Lester Porter against William Beattie, John Ehr, and Anna Maria Ehr, for damages for deceit. Judgment for defendants. Plaintiff appeals. Reversed.

It appears from the record: That on and prior to May 16, 1892, the defendant John Ehr owned the farm in question, situated about two miles west of Portage City. That early in April, 1892, he applied to the defendant William Beattie, a real-estate agent in Portage City, to sell said farm, and agreed with him, in writing, that he would take $2,600 for the same, less 2 per cent. commissions to be paid to said Beattie, and that said Beattie might, in addition, have all he could get over and above $2,600. That thereupon Beattie employed a Mr. Unger, residing at Marshall, about four miles from Waterloo, to aid him in selling said farm at $4,000, and agreed to give him a commission, in case such sale was effected, of 6 per cent. That thereupon Unger employed Thomas A. Williams, of Waterloo, to aid in selling said lands at said price, and agreed to give said Williams one-half of said 6 per cent. commission, in case he effected such sale, to wit, the sum of $120. That thereupon said Williams caused a notice to be published in the Waterloo Democrat, April 22, 1892, which, omitting the portions applicable to other farms, read as follows, to wit: “Call at the office of T. A. Williams, and see plats for the following farms: * * * One farm, 2 miles from Portage, 272 acres, $4,000.” That soon after the plaintiff in this action, having seen said notice in said newspaper, called on said Williams at his office, and by him was shown plat Exhibit A, purporting to represent the said farm. That said plat was in different colors,--one color representing plowed land; another color, marsh land; and another color, timber land. That the lands so colored, and purporting to be the farm of said Ehr, are described as follows, to wit: The E. 1/2 of the N. E. 1/4, and the N. E. 1/4 of the S. E. 1/4, and the E. 1/2 of the N. W. 1/4 of the N. E. 1/4, of section 3, all in township 12 N., of range 8 E.; also, 32 acres off the S. 1/2 of the S. E. 1/4 and the E. 1/2 of the S. W. 1/4, less 18 acres lying north of the right of way of the Chicago, Milwaukee & St. Paul Railway Company, being in section 34, in township 13 N., of range 8 E.; and also that part of the W. 1/2 of the S. W. 1/4 of said section 34, lying south of said right of way; that at the bottom of said plat, and on the back thereof, was the following writing, to wit: “The above contains 272 acres. About 120 under plow--Balance timber and grass land. All fenced, mostly with wire. Land is nearly all first class. The hay land is estimated to cut 150 tons. Water on both parts, with a well at the house and well at the barn. House 16x28, two stories high. Frame barn, 24x52, with basement for cattle. Machine shed and other buildings. Buildings are new and first-class. Owner is very old, and has moved to the city. Price, $4,000. Payments can be arranged to suit purchaser.” That soon after the plaintiff visited said farm in company with said Williams and said Beattie. That thereafter, and on May 16, 1892, the said John Ehr and Anna Maria Ehr, his wife, executed a power of attorney to the said William Beattie, to bargain, sell, and convey their farm in Columbia county, described as follows, to wit: “ The west 15 acres of the southwest quarter of the northwest quarter, and the west 15 acres of the northwest quarter of the southwest quarter of section numbered two ( 2); the east half of the northeast quarter and northeast quarter of southeast quarter; and that part of east half of the northwest quarter lying north of the highway crossing the same in section number 3; all of the above being in township number twelve (12) north, of range number eight (8) east; also, 32 acres off the south side of south half of southeast quarter and the east half of southwest quarter, less 18 acres lying north of the right of way of the Chicago, Milwaukee and St. Paul Railway Company, being in section number thirty-four (34) in township number thirteen (13) north, of range number eight (8) east, containing 272 acres, be the same more or less,”--which power of attorney was duly witnessed and acknowledged. That May 16, 1892, the said John and Anna Maria Ehr also executed a warranty deed of all the same premises described in said power of attorney, but the grantee's name therein, and the consideration thereof, were left blank therein, and which deed was duly witnessed with two witnesses, and acknowledged. That May 19, 1892, the said Beattie completed the trade with the plaintiff, inserted his name as grantee in said deed, and delivered the same to him, and the said plaintiff at the same time paid to the said Beattie $1,000 in cash, and gave back to him two notes, secured by a mortgage on said premises; and thereafter the said Beattie paid to the said John Ehr the said $1,000, and also the sum of $1,548, and the said John Ehr thereupon assigned said notes and mortgage to the said Beattie, who has since held the same. That August 15, 1892, the plaintiff claims to have discovered that he had been defrauded in the purchase of said land, and thereupon, and on November 23, 1892, he commenced this action to set aside said notes and mortgage and said deed, and to have his damages ascertained, assessed, and found, and for judgment against the defendants for the amount thereof, and that the same be adjudged to be a lien upon said lands so conveyed to the plaintiff, and for such other and further relief as to the court should seem just and equitable. That the defendant Beattie answered the complaint by way of admissions and denials and counter allegations, and the said John and Anna Maria Ehr also answered in a similar way. That, the case coming on to be tried, the said plaintiff and his wife executed and acknowledged, in the presence of two witnesses, who signed their names thereto as such, a deed of said premises so conveyed to them, and tendered the same back to the said John Ehr upon said trial, and offered the same in evidence, and the same is filed with the clerk of the court. That at the close of the trial, and on May 15, 1893, the court made its findings of fact and conclusions of law, among other things, to the effect that said Beattie was authorized by the said John Ehr to sell said lands, and to employ said Williams to assist in selling the same; that said Williams had a plat in his possession, as mentioned; that said plat was not an accurate description or representation of said farm, in several particulars; that the plaintiff saw said plat at the office of said Williams, in Waterloo, before he saw said lands; that he thereafter visited said lands, and was shown over said farm, and was given every opportunity to examine the same; that he was not shown any lands, as belonging to the farm, except such as in fact belonged to said farm; that the plat was not referred to in any way while the plaintiff was so examining said farm; that all the parties understood that the farm contained 272 acres, whereas the plat represented a considerable more than that amount; that the deed was made and mortgage given as stated; that the plaintiff purchased said lands from an actual inspection thereof; that he was not misled as to the farm by the error in said plat, nor influenced thereby; that the deed which he received correctly describes the farm so belonging to Ehr, and the lands so shown to the plaintiff, and no others. And as conclusions of law the court found that the plaintiff was not entitled to have the sale set aside, nor to judgment for damages, as demanded; that the complaint should be dismissed,--and ordered judgment accordingly, but without costs to either party. From the judgment entered thereon accordingly, the plaintiff brings this appeal.Bushnell, Rogers & Hall, for appellant.

J. H. Rogers and H. T. Ames, for respondents.

CASSODAY, J. (after stating the facts).

The trial court failed to find the value of the land conveyed. Mr. Ehr readily agreed to take $2,600 therefor, less 2 per cent. commission for making the sale. There is nothing to indicate that he ever expected to get any more, nor that, in his judgment, it was worth any more. There is some evidence that it was not worth as much. It seems quite certain that it was not worth any more. Beattie was to have all he could get over the $2,600, as well as the commissions named. Beattie had been in the real-estate business at Portage for about 30 years. Living thus about two miles from the farm, and being in that business, we may fairly assume that he knew...