Gunther v. Ullrich

Putney, J. The finding in answer to the sixth question, owing to the manner in which the question was framed, is ambiguous arid hopelessly uncertain. No force or effect can be given to this finding, if such it may. be called, for it really finds nothing at all. The question being in the alternative, the affirmative answer may be applied as fairly to the innocent act of taking out the plaintiff to see the lots proposed to be conveyed as to the fraudulent and reprehensible act of knowingly pointing out to him the wrong [227] lots. This question and answer must therefore be disregarded, and the question to be determined is whether, upon the facts found and the uncontradicted evidence, judgment ought to be given in favor of the plaintiff instead of against him. Farwell v. Warren, 76 Wis. 528-540, and cases cited. The verdict finds that Ullrich knowingly showed the plaintiff other lots than those purchased; that, before going out to see them, he represented to the plaintiff that the lots in question were within the city limits of Milwaukee; that the defendant Louis Abraham also represented to the plaintiff that the lots were within the city limits of Milwaukee; and that the plaintiff parted with his stock of goods and fixtures relying upon the representations made by Ullrich before starting to see the lots, as well as upon the representations made by Louis Abraham,* and that the latter heard Ullrich make the same representations to the plaintiff which he himself made. It is found that none of the defendants by any artifice prevented or dissuaded the plaintiff from making inquiry in reference to the true location of the lots, and the plaintiff had present means of information as to their location on or before October 1,1889, the date of making the exchange; that, after learning that the lots were not within the city limits of Milwaukee, he did not consummate or ratify the exchange of property, or accept said lots. Under the undisputed evidence and the facts found by the jury, after excluding the defective question and answer, we think that the plaintiff is entitled to judgment for the difference in value between the lots pointed out to him on the extreme city limits in a northeast direction, and the lots the defendants Bing and Abraham and wife attempted to convey to him, which were about two miles and a half beyond the city limits, and that distance north of the lots so pointed out by Ullrich. The defendants knew very well where the lots they owned were situated; at least they are [228] chargeable with such knowledge, and there is no pretense that they did not have it. They were worth only $200 each, and were two miles and a half beyond the city limits, instead of being in the city limits and worth $700 each, as represented; the total difference in value being as $1,000 to $3,500. The uncontradicted evidence shows that Louis Abraham, was the agent of his codefendants Bing and Hannah Abraham, his wife, in negotiating the exchange of property in question, and they are liable to respond for any damages resulting from the fraudulent misrepresentations of their' agent in respect to the situation of the lots to be conveyed to the plaintiff by them in exchange for the stock of goods. This is familiar doctrine (McKinnon v. Vollmar, 75 Wis. 82-90; Bennett v. Judson, 21 N. Y. 238; Mayer v. Dean, 115 N. Y. 556, 561, and cases cited); and it matters not whether the misrepresentation was intentional or not (Cotzhausen v. Simon, 47 Wis. 106; Davis v. Nuzum, 72 Wis. 439; Bird v. Kleiner, 41 Wis. 134-138; Middleton v. Jerdee, 73 Wis. 39; Montreal R. L. Co. v. Mihills, 80 Wis. 541-560). As was stated in Cotzhausen v. Simon, 47 Wis. 106, “ It is immaterial whether the defendant made the representations wilfully or intentionally or not, for he had no right to make even a mistake in facts so material to the contract, except under the1 penalty of responding in damages ; ” and in the case of an agent, if the principal is liable for such misrepresentations of his agent, very clearly the agent is also liable, and the same result follows in law as if there had been a fraudulent combination or conspiracy between the agent and his principals. It was strongly contended, both on the part of Ullrich and of his codefendants, that under the decision of this court in Mamlock v. Fairbanks, 46 Wis. 415, as applied in the subsequent case of Conner v. Welch, 51 Wis. 440, as the plaintiff had the present means of information as to the location of the lots, and the defendants did not by any artifice prevent [229] or dissuade him from making inquiry in reference to the. true location of them, they are therefore not liable. This contention entirely overlooks and ignores the obvious distinction between the case they rely on and the case of Castenholz v. Heller, ante, p. 30, and other like cases herein cited, in which it is held, in substance, that where the vendor undertakes to state or point out to a purchaser the boundaries or situation of the property he is selling, he is under obligations to state or point them out correctly and has no right to make a mistake except upon the penalty of responding in damages. If there had been no positive statement made to the plaintiff as to the situation or location of the. lots, and he had been left to his own devices to apply and act upon the means of knowledge he possessed, then the rule for which counsel contends might well be applied; but it is too well settled in this state to. require discussion that where the proposed purchaser is ignorant of the location he has the right to rely upon a positive statement made by the vendor in that respect, and hold him responsible if it proves untrue, although there was no intentional misrepresentation. It would seem that the liability of the codefendants of Ullrieh may be properly rested as well upon the ground that, after the grossly fraudulent acts of Ullrieh which induced the contract, and inhered in it, had become known, the advantages of which could inure only to his codefend-ants, they made his fraudulent acts their own by ratification and adoption. The defendants Bing and Abraham and wife, nevertheless, insisted and still insist upon and retain the benefits and advantages of the transaction thus fraudulently induced, and sent to the plaintiff, by Ullrieh, a corrected deed of the lots situated two and a half miles beyond the city limits, which, it is said, he .declined to accept, and the defendants procured it to be recorded on the 19th of October, 1889. It is found by the jury that the [230] plaintiff refused to accept the lots. The former deed, it appears, was not signed by Hannah Abraham or Mrs. Bing in person, but by their respective husbands in their names, and there was no grantee named in it. It is found that Abraham, tendered a rescission and return of the property before the action was brought, but at what particular time is not stated. We do not understand that it is the right of a party, by whose fraud a contract has been induced, to rescind it. The right of rescission is the right only of the victim, and not of the perpetrator, of the fraud. It is clear that the defendants Bing and Louis and Hannah Abraham have made the transaction in all its material features their own by ratification and adoption, and they are therefore bound by and answerable for the consequences of the misrepresentations made to the plaintiff as to the location and situation of the lots. It is now no answer for them to urge that the jury found that there was no combination, conspiracy, or agreement between them and the plaintiff’s faithless agent, Ullrich. There is that in the case which, as a matter of law, supplies its place. Mayer v. Dean, 115 N. Y. 556, 561, and cases cited. But it is not necessary to rest the liability of the defendants on this ground. The case, as against Ullrich, is too clear, in the light of well-settled rules, to require discussion. For these reasons we must hold that the superior court should have rendered judgment upon the special verdict in favor of the plaintiff, and against the defendants, for $2,500 and the costs of the action. By the Court.— The judgment of the superior court of Milwaukee county is reversed, and the cause is remanded to that court to render judgment accordingly.