Rogers v. Rosenfeld

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtTIMLIN
Citation158 Wis. 285,149 N.W. 33
Decision Date06 October 1914
PartiesROGERS v. ROSENFELD ET AL.

158 Wis. 285
149 N.W. 33

ROGERS
v.
ROSENFELD ET AL.

Supreme Court of Wisconsin.

Oct. 6, 1914.


Appeal from Circuit Court, Juneau County; James O'Neill, Judge.

Action by John Rogers against Robert T. Rosenfeld and others. Judgment for plaintiff, and defendants appeal. Affirmed.

[149 N.W. 35]

Daniel H. Grady, of Portage, and J. T. Dithmar, of El Roy, for appellants.

Grotophorst. Evans & Thomas, of Baraboa, for respondent.


TIMLIN, J.

This action was to recover damages for deceit in the sale of mining stock of the Tusas Peak Gold & Copper Mining Company. The plaintiff purchased the shares from the defendant Rosenfeld, and the defendant Barge aided Rosenfeld in making the sale. Three misrepresentations were charged. The first two were eliminated by somewhat doubtful rulings of the trial court in favor of the defendants, and the jury found upon the third as follows: (2) The defendant Rosenfeld, for the purpose of inducing the plaintiff to purchase the stock, represented to the plaintiff that there was ore enough on the dump at the mine to run a mill three to five years; that it was a good grade of ore, a high grade of ore; and that there was a half million dollars' worth of ore on the dump ready to mill. (3) This representation was not understood by the plaintiff as an expression of opinion. (4) The plaintiff was induced to purchase by reason of such representation. (5) Plaintiff relied on such representation in making the purchase of the stock. (6) Such representation was false and untrue. (7) Plaintiff's damages are $319.50. Similar findings were made by the jury with reference to the defendant Barge.

Errors are assigned: (1) In denying defendants' motion for a directed verdict; (2) in the admission and rejection of evidence; (3) in refusing to include in the special verdict questions requested by defendants; (4) in refusing requested instructions.

[1] In support of the first error, it is argued that the representations found to have been made were mere expressions of opinion; that there was no competent evidence of the falsity of such representations or of damages resulting therefrom; and that it appears affirmatively that the plaintiff did not, in making the purchase, rely upon these representations. But the sale of stock was made in Wisconsin. The alleged mine is in New Mexico. The defendant Rosenfeld was a large stockholder, and his brother was an officer thereof and participated in the management. The defendant Rosenfeld had recently returned from the mine, and the plaintiff never saw it, and had no reasonable opportunity for examination. There was no request for a question to be embodied in the verdict asking whether the defendant intended this statement as a mere expression of opinion or a statement of fact; hence we must presume a finding in support of the judgment that the representation was intended as a statement of fact. Section 2858m, Stats.

With reference to the evidence of untruth. In 1909, November 9th, as shown by the report of the president and secretary to the stockholders, the mine, which included the dump in question, was quite worthless. The defendant Rosenfeld signed this report as secretary, having since the sale in question taken that office. The same dump or ore pile was there at this time in 1909 as was there in 1906, when the representations were made and the shares sold. This dump was about 30 feet high and 30 by 60 feet at the base. In 1906 the corporation had a mill of 100 tons' daily capacity. According to the books of the corporation, the total amount of ore sold prior to 1909 was about $14. Defendant Rosenfeld testifies that there was a quantity of what he was told was ore on this dump, but he did not know the difference between ore and refuse, but he denies that he made the representation in question.

The appellants cite Morgan v. Hodge, 145 Wis. 143, 129 N. W. 1083,Jones v. Kinney, 146 Wis. 130, 131 N. W. 339, Ann. Cas. 1912C, 200,Burwash v. Ballou, 230 Ill. 34, 82 N. E. 355, 15 L. R. A. (N. S.) 409,Tuck v. Downing, 76 Ill. 71,Crocker v. Manley, 164 Ill. 282, 45 N. E. 577, 56 Am. St. Rep. 197, and other cases to support their contention that the representations found to have been made express mere matters of opinion, and are therefore nonactionable, while the respondent cites to the contrary Warner v. Benjamin, 89 Wis. 290, 62 N. W. 179,Barndt v. Frederick, 78 Wis. 1, 47 N. W. 6, 11 L. R. A. 199, and Brown v. Ocean Accident, etc., Corp., 153 Wis. 196, 140 N. W. 1112.

The representation here found by the jury to have been made may be compared to those held actionable in each of the cases last cited. It is often a close question whether a statement or representation put forward by the seller to induce a purchase is a statement of fact or the mere expression of an opinion, as the preceding cases amply show.

[2] It is quite apparent that the misrepresentation found by the jury to have been made in the instant case does not, at least in its entirety, take the form of an expression of opinion. “There was ore enough on the dump to run the mill five years,” and “it was a high grade of ore,” are statements of fact. “That there was half a million dollars' worth of ore on the dump ready to mill” is somewhat in the nature of an expression of opinion, but not clearly so, and when coming from a seller who was narrating what he had seen on the property to a buyer who never saw it, and had no reasonable opportunity to see it, must be considered a statement of fact. Besides this we may consider that:

“The mere fact that a statement takes the form of an expression of opinion, however, is not always conclusive. Whenever there is any doubt as to whether it is made as a mere expression

[149 N.W. 36]

of opinion or as a statement of fact, the question must be determined by the jury or court.” J. H. Clark Co. v. Rice, 127 Wis. 431, 465, 106 N. W. 231, 236 (7 Ann. Cas. 505).

Here we have the fact found against the appellant by the verdict and the judgment. This finding rests upon evidence.

“It is generally held that where the property involved is situated at a distant place, and thus an inspection cannot be made without expense and inconvenience, and the prospective purchaser is ignorant of the facts, he may rely on the vendor's positive statements regarding the property, and may hold him liable, if they are false and fraudulent, even though they are representations of the value, quality, and condition of the property.” 20 Cyc. p. 58, and cases in notes 51 and 52.

We must hold that the representation found to have been made under the circumstances stated was, if false and if relied upon, an actionable misrepresentation.

[3] When it was shown that the same dump existed at the same mine in 1909, and that only $14 worth of ore had been shipped in the interim or had ever been shipped from the mine, and that the defendant Rosenfeld, as secretary of the corporation, reported the mine as worthless, coupled with proof tending to show that the property was abandoned, evidence was presented from which the jury was authorized to infer that the representation was false. The declaration of Rosenfeld against his interest was competent evidence against him. The corporation records and their competency as against the defendant Rosenfeld and the competency of both as against both defendants will be considered hereafter.

Where a mine is admitted to be worthless, this carries an admission that the dump, which is part of the mine, is worthless, and a mill situated upon or built as an adjunct to a worthless mine is usually worthless. At least the jury was authorized to find...

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20 practice notes
  • Bullard v. Citizens' Nat. Bank, 31626
    • United States
    • Mississippi Supreme Court
    • June 10, 1935
    ...26 C. J. 1219, footnote 13(b), 1098 (28) C., 1091, 1085, par. 22 (c); Olston v. Oregon Water Power Co., 52 Ore. 343; Rogers v. Rosenfield, 158 Wis. 285; Coulter v. Clark, 66 N.E. 739; Restatement of the Law of Contracts, par. 474 (a). Every case is to be determined by its own particular cir......
  • Bullard v. Citizens' Nat, Bank, 31626
    • United States
    • United States State Supreme Court of Mississippi
    • March 25, 1935
    ...13(b), 1098 (28) C., [173 Miss. 454] 1091, 1085, par. 22 (c); Olston v. Oregon Water Power Co., 52 Ore. 343; Rogers v. Rosenfield, 158 Wis. 285; Coulter v. Clark, 66 N.E. 739; Restatement of the Law of Contracts, par. 474 (a). Every case is to be determined by its own particular circumstanc......
  • State ex rel. Kropf v. Gilbert
    • United States
    • United States State Supreme Court of Wisconsin
    • December 5, 1933
    ...of this court seems to be the following statements in relation to the knowledge chargeable to stockholders. In Rogers v. Rosenfeld, 158 Wis. 285, 293, 149 N. W. 33, 37, this court said that “as between the members of a private corporation, the corporate books relating to the assets, organiz......
  • De Swarte v. First Nat. Bank of Wauwatosa
    • United States
    • United States State Supreme Court of Wisconsin
    • January 2, 1926
    ...N. W. 231, 7 Ann. Cas. 505;Miranovitz v. Gee, 163 Wis. 246, 157 N. W. 790;Heal v. Stoll, 176 Wis. 137, 185 N. W. 242;Rogers v. Rosenfeld, 158 Wis. 285, 149 N. W. 33. [4] One of the transactions took place in January. We see no reason why the plaintiff could not then rely on the representati......
  • Request a trial to view additional results
20 cases
  • Bullard v. Citizens' Nat. Bank, 31626
    • United States
    • Mississippi Supreme Court
    • June 10, 1935
    ...26 C. J. 1219, footnote 13(b), 1098 (28) C., 1091, 1085, par. 22 (c); Olston v. Oregon Water Power Co., 52 Ore. 343; Rogers v. Rosenfield, 158 Wis. 285; Coulter v. Clark, 66 N.E. 739; Restatement of the Law of Contracts, par. 474 (a). Every case is to be determined by its own particular cir......
  • Bullard v. Citizens' Nat, Bank, 31626
    • United States
    • United States State Supreme Court of Mississippi
    • March 25, 1935
    ...13(b), 1098 (28) C., [173 Miss. 454] 1091, 1085, par. 22 (c); Olston v. Oregon Water Power Co., 52 Ore. 343; Rogers v. Rosenfield, 158 Wis. 285; Coulter v. Clark, 66 N.E. 739; Restatement of the Law of Contracts, par. 474 (a). Every case is to be determined by its own particular circumstanc......
  • State ex rel. Kropf v. Gilbert
    • United States
    • United States State Supreme Court of Wisconsin
    • December 5, 1933
    ...of this court seems to be the following statements in relation to the knowledge chargeable to stockholders. In Rogers v. Rosenfeld, 158 Wis. 285, 293, 149 N. W. 33, 37, this court said that “as between the members of a private corporation, the corporate books relating to the assets, organiz......
  • De Swarte v. First Nat. Bank of Wauwatosa
    • United States
    • United States State Supreme Court of Wisconsin
    • January 2, 1926
    ...N. W. 231, 7 Ann. Cas. 505;Miranovitz v. Gee, 163 Wis. 246, 157 N. W. 790;Heal v. Stoll, 176 Wis. 137, 185 N. W. 242;Rogers v. Rosenfeld, 158 Wis. 285, 149 N. W. 33. [4] One of the transactions took place in January. We see no reason why the plaintiff could not then rely on the representati......
  • Request a trial to view additional results

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