Danforth v. Wharton

Cole, J. The errors relied on for a reversal of the judgment in this case are, (1) the admission of testimony tending to prove that when the note sued on was given, the defendants were informed that the time to take the pine timber from lots 1, 2 and 3 expired on the 23d day of October following; and (2) the charge of the court to the effect-that, if the defendants knew or had good reason to believe, when they gave the note and purchased the timber on lots 1, 2 and 3, that the time to take the timber from those lots expired on the 23d of October, or in the fall of 1873, then they were not entitled to any deduction from the note on account of the loss of timber, and the defense must fail. It seems to us that the rulings of the court upon both points were correct, under the answer. The answer sets up, both as a defense and as a counterclaim, that Danforth and Griffin claimed to own the standing timber on these lots, free from incumbrances, which they sold to the defendants and warranted [196] the title, while in fact they only had the right to this timber provided they should remove or take it away by the month of October, which fact they fraudulently concealed from the defendants; that the defendants, being ignorant of the limitation within which the timber was to be removed, did not take it away in time, and as a consequence lost its value. The gist of the answer is obviously the fraudulent concealment of the material fact as to the limitation of time to remove the timber. It is founded upon fraud, and not upon the contract of warranty, as we understand the allegations. The essential distinction in the cases is pointed out in Pierce v. Carey, 37 Wis., 232. The answer, therefore, being founded upon the fraudulent concealment of the limitation, evidence which tended to prove that the defendants were informed as to the time within which the timber must be removed, met the precise issue on that point. This seems to us too plain to require argument in its illustration. So in regard to the charge which is excepted to as erroneous. In this charge, the learned circuit judge submitted to the jury the distinct question, whether the defendants knew or had reason to believe, when they gave the note and purchased the timber, that the time to remove it from the lots expired in October; if so, the defendants were not entitled to any deduction on account of the loss of the timber. This, again, was meeting the issue presented by the answer. If the defendants knew about the limitation, then there had been no fraudulent concealment of that fact by Danforth and Griffin. Now, under this charge, which seems to us manifestly correjct, the jury found that there was a fraudulent concealment, and assessed the defendants’ damages. And we presume the real ground of complaint on the part of the defendants is, that the damages as allowed are too low. But we cannot review the finding of the jury on that question, as there is evidence to sustain it. The learned counsel for the defendants insisted that the de [197] fense was predicated upon a covenant of warranty, and therefore it was immaterial whether the defendants, at the time of the purchase and the giving of the note, knew anything about the limitation or not. The defense, however, as we understand it, is founded upon a fraud — the intentional and fraudulent concealment of the limitation. It is for a cause of action ex delieto, and not ex eontraetu. An examination of the answer will show that this view is right. It devolved upon the defendants to ..establish the fraud, and this it seems they did not do. We therefore think the judgment must be affirmed. By the Court. — Judgment affirmed.