Schauer v. Bodenheimer

• Decision Date: 08 October 1912
• Parties: SCHAUER v. BODENHEIMER.
• Court: Wisconsin Supreme Court

150 Wis. 550

137 N.W. 785

SCHAUER

v.BODENHEIMER.

Supreme Court of Wisconsin.

Oct. 8, 1912.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by August Schauer against M. Bodenheimer. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action in deceit, brought to recover the purchase price of a mare and colt sold by defendant, appellant, to the plaintiff, respondent. The right of recovery is based upon alleged fraud in concealment of a material fact, and false representation. Before action brought, the plaintiff returned, or offered to return, the property, and demanded the purchase money. The purchase was made June 27, 1910, and a written warranty given, warranting that the mare had no heaves and was not wind-broken. The charge of false and deceitful representation alleged in the complaint was that the mare had chicken lice, while in fact she had a disease known as mange, of which the plaintiff was ignorant, and which disease rendered her of no value. The answer denies the material allegations of the complaint, and denies any warranty or false or deceitful representation, and alleges that defendant refused to give any warranty, except the one in writing referred to. The case was submitted to the jury on a special verdict, and after being out 24 hours the jury answered all the questions except the sixth, but failed to agree on the sixth, and it was left unanswered. The following is the verdict as returned and filed:

“(1) Did the defendant, on or about June 27, 1910, sell to the plaintiff the mare and colt in question for $280? Answer: Yes (by the court).

(2) Was said mare, at the time of said sale, afflicted with the disease called mange? Answer: No.

(3) If your answer to the second question should be ‘No,’ then answer this: Was said mare, at the time of said sale, afflicted with a disease known as an eczematous condition resulting from mange? Answer: Yes.

(4) If you should answer the second question or the third question ‘Yes,’ then answer this: Did the defendant know that said mare was so afflicted with said disease at the time of said sale? Answer: Yes.

(5) If you should answer the fourth question, and answer it ‘Yes,’ then answer this: Did the plaintiff know, at the time he purchased said mare, that she was afflicted with said disease? Answer: No.

(6) If you should answer either the second or third question and the fourth question ‘Yes' then answer this: Did the defendant, for the purpose of inducing the sale, falsely and deceitfully fail to inform the plaintiff that said mare was afflicted with said disease? Answer: ______.”

After this verdict was returned, the court discharged the jury. This was on December 9, 1911. Afterwards the case was noticed by the plaintiff for trial at the March, 1912, term and again placed upon the calendar; but before it was reached the defendant filed an affidavit of prejudice. The court held the case and called in another judge to try it. Before the time set for trial, the defendant moved for judgment upon the verdict as returned, upon the minutes of the court, the uncontradicted evidence, and the entire record of said action, which motion was denied. Counsel for appellant also moved for a new trial upon several grounds, and, among others, because the verdict was contrary to law, and because it did not cover all the material issues in the action and was insufficient, and because there was a mistrial, which motion was also denied. Judgment was ordered for the plaintiff, from which this appeal was taken.Sheridan, Evans & Merrill, of Green Bay, for appellant.

Martin, Martin & Martin, of Green Bay, for respondent.

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

As appears from the statement of facts, the jury failed to agree upon the sixth question of the special verdict as to whether the defendant, for the purpose of inducing the sale, falsely and deceitfully failed to inform the plaintiff that the mare was afflicted with disease. It also appears from the record that defendant's counsel requested that the following question be submitted to the jury: “Did the plaintiff rely upon such false and fraudulent statement, and was he deceived thereby?” which request was denied.

Thus it appears that the issues raised by the sixth question, unanswered, and the request refused were not passed upon by the jury. The complaint alleges that the mare had mange, which disease rendered her of no value; that, for the purpose of inducing the plaintiff to purchase, the defendant falsely and deceitfully represented that the mare had chicken lice, and that such trouble was of little or no consequence; that plaintiff had never heard of or knew anything about either of the diseases known as chicken lice or mange, and relied wholly upon the statement of defendant concerning the disease of the mare.

The evidence tends to show that the mare and colt, at the time of sale to plaintiff, if the mare were sound and without blemish, were worth $350, and that the defendant did not represent the mare as sound, and refused to give any warranty, except a written warranty to the effect that the mare had no heaves and was not wind-broken.

[1] The main controversy on the trial was whether the mare had mange, and the jury found that she had not, but had an eczematous condition resulting from mange, and that this condition was evidenced by bare spots on the neck, where the hair had come off, or had been rubbed off, and the thick and corrugated condition of the skin at the affected places. This condition, or a somewhat similar condition, had existed for two or three years before sale to plaintiff, except that the extent of the surface affected and size of the bare spots varied.

It also appears from the evidence that the plaintiff kept the mare over five months before offering to return her; that defendant bought the mare from one Schuster about a month before he sold her to plaintiff; that at the time he bought her she was worth $230; that the colt was worth $50. There is no direct evidence as to the damage caused by the eczematous condition, or how much, if at all, it reduced the value of the mare, or whether it was more injurious than the affliction of chicken lice. On the contrary, the evidence is that when defendant bought the mare from Schuster she was worth $230, and there is no evidence that she was worth less when sold to plaintiff, and there is no dispute that the colt was...