Woteshek v. Neumann

• Decision Date: 10 December 1912
• Citation: 138 N.W. 1000,151 Wis. 365
• Parties: WOTESHEK v. NEUMANN.
• Court: Wisconsin Supreme Court

151 Wis. 365

138 N.W. 1000

WOTESHEK

v.NEUMANN.

Supreme Court of Wisconsin.

Dec. 10, 1912.

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

Action by Louis Woteshek against A. M. Neumann. Judgment for plaintiff, and defendant appeals. Affirmed.

Action to recover damages for false representations made in a transaction resulting in the exchange of certain real estate between plaintiff and defendant. The complaint alleges, in substance, that on the 29th of December, 1910, the defendant and plaintiff entered into an agreement whereby the former, in exchange for certain lands, agreed to transfer to the latter certain lots situated in the city of Milwaukee; that the plaintiff agreed to assume and pay the taxes on said lots, both general and special, for the year 1910; that the defendant, as an inducement for the exchange of properties, represented, stated, and warranted to the plaintiff that the only special taxes levied against said lots were such as were levied for the grading and macadamizing of Burleigh street, which adjoins them, and that in no event would said assessment exceed the sum of $200; that, relying upon such statements and representationsmade by the defendant in regard to such taxes, the plaintiff entered into an agreement for the exchange and transfer of the properties. The complaint further alleges that the special tax levied against said lots for the grading and macadamizing of Burleigh street was not the only special tax levied against them, as was stated and represented by said defendant, but, on the contrary, there were special taxes levied against them for the improvement of Twenty-Eighth street, which fact the defendant well knew or had reason to know, of which the plaintiff was ignorant, and which fact the defendant fraudulently concealed from the plaintiff; that the taxes on said lots were not less than $200, as represented by the defendant, but, on the contrary, were $458.83, which fact defendant well knew or had reason to know, and of which said plaintiff was ignorant, and which fact the defendant fraudulently concealed from the plaintiff; that as the result of plaintiff's relying upon the statements and representations of defendant, and as a result of defendant's fraudulent concealment of facts which induced plaintiff to enter into the trade, the plaintiff has suffered a loss of $266.83 damages and costs.

The answer of the defendant admitted the ownership of the property mentioned in the complaint, the making of the agreement, and the assumption of the general and special taxes by the plaintiff for the year 1910, but denied the allegations as to fraud. Before the taking of any testimony, the defendant objected to the admission of any evidence under the complaint, for the reason that it did not state facts sufficient to constitute a cause of action, which objection was overruled. The cause was submitted to a jury upon a general verdict, and they found for plaintiff in the sum of $258.83. The court ordered judgment for plaintiff for said amount. The case was tried originally in the civil court of Milwaukee county. Upon an appeal by the defendant from such judgment to the circuit court of Milwaukee county, the judgment of the civil court was affirmed, and the defendant appealed from such judgment of affirmance.

Friedrich, Teall & Hackbarth, of Milwaukee, for appellant.

W. B. Rubin, of Milwaukee (Max Schoetz, Jr., of Milwaukee, of counsel), for respondent.

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

[1] In support of the demurrer ore tenus, counsel for defendant argue that the complaint is insufficient because it does not allege all the essential facts and elements necessary in cases of fraud; that, though the complaint alleges representations were made to the plaintiff that the defendant fraudulently concealed the amount of special taxes, and that plaintiff relied upon the representations made, yet it does not allege that such representations or statements were false or untrue. They further argue that the complaint does not specify the means or method by which the defendant made the alleged representations or concealed the facts from plaintiff, nor does it allege that plaintiff was unable by the use of due diligence to obtain knowledge of the facts, nor that the defendant, by the use of any trick or artifice, prevented him from obtaining such knowledge or information, and in support of their position they cite Supervisors of Kewaunee v. Decker, 30 Wis. 624;Riley v. Riley, 34 Wis. 372;Landauer v. Vietor, 69 Wis. 434, 439, 34 N. W. 229;New Bank of Eau Claire v. Kleiner, 112 Wis. 287, 87 N. W. 1090. An examination of those cases will at once disclose that the allegations therein with reference to what constituted the false and fraudulent representations were materially different from those in the case at bar. Here the complaint alleges that the defendant knew, or had reason to know, that the taxes on his lots amounted to $458.83, and yet he represented to plaintiff that they would not exceed $200; that plaintiff relied upon such statements, and by reason thereof sustained damage in the sum of $266.83. Such allegations sufficiently charge misrepresentation, falsity, scienter, deception, and damage. When it is charged that a person knows or ought to know what the fact is, and that ...