Plano Manufacturing Co. v. Bergmann

Dodge, J. The errors principally relied on by the appellant are, first, that the court instructed the jury that the burden of proof was on the defendant to show misrepresentations or fraud in inducing him to enter into the contract ; second, that the court erred in refusing to instruct the jury that, if the plaintiff procured the making of the written contract by fraud or misrepresentation, it would be no defense that the defendant did not exercise due care and intelligence to inform himself as to its contents; thvrdly, the refusal to set aside the verdict for the reason that the same was inconsistent. [24] 1. The rule that one who alleges misrepresentation or fraud bears the burden of proof is too well established to need discussion. Indeed, the appellant concedes it generally, but seeks to invoke the exception that, where a relationship of trust and confidence is established, the burden then shifts to the other party. No such case is here shoAvn by the evidence, however, which merely discloses that the agent was a hardware and machinery dealer, with whom the defendant had traded for many years, and in whose integrity and business standing he had confidence. It appears that they met on the ordinary basis- of buyer and seller of farm machinery. From such relations as these no inference can be drawn of that trust or confidence which constitutes this exception. 2. The instructions requested by the fifth and sixth assignments of error are to the effect that a party who procures the execution by another of a contract by fraud and misrepresentation cannot then bar a defense thereto, on the ground that the other party has been ignorant or negligent. Such instructions might have been proper and applicable in the event of a general verdict, but they had no application to any of the questions submitted by the special verdict. Further than this, they were rendered wholly immaterial by the finding of the jury that the hypothesis of fraud or misrepresentation in procuring the written instrument had no existence in this case. 3. The answer to the fifth question is not, as urged by the defendant, inconsistent with the rest of the verdict. That question, answered in the affirmative, is: “ Did the defendant and the plaintiff’s agent Zilisch agree that if the binder, upon trial thereof, did not suit the defendant, he might return it without notice? ” The rest of the verdict merely negatives the claim that that agent misled the defendant as to the contents of the written instrument signed by him, and is not necessarily inconsistent with the making of such [25] an agreement as the fifth question contemplates. Such an agreement might have been made before the execution of the writing, and still the plaintiff might have signed the latter with full knowledge of its contents; orj if made after the writing, it would still be consistent with a full understanding of the paper at the time it was signed. It appears, however, that the only evidence offered by the defendant of any such agreement rather tends to establish an individual promise on the part of the agent personally, and not for his principal, the plaintiff, that the machine might be returned to him, and should be his, if not satisfactory to defendant; and the jury might well have understood the fifth question as applying to such promise. The verdict of a jury, when sustained by the trial court, is entitled to the most favorable-construction warranted by the record. The other assignments of error hardly need notice. The instructions objected to in the third and fourth assignments, were correct, the question whether the plaintiff’s agent had in fact misrepresented the terms of the written agreement having been properly submitted to the jury. Fuller v. Madison Mut. Ins. Co. 36 Wis. 599; Pettyplace v. Groton B. & Mfg. Co. 103 Mich. 155. The error, if there was any, in refusing cross-examination of the plaintiff’s witness Zilisch when first upon the stand, was fully cured by permitting an exhaustive cross-examination upon the same subjects when he reappeared in rebuttal. The court did not, as asserted in the eighth assignment of error, refuse to permit the defendant to testify as to representations made to him by the plaintiff’s agent at and before signing the contract. The objection sustained at the place indicated was to a question, “ What was the ha/rgain which you had with Mr. Zilisch in regard to that binder? ”— clearly objectionable, as' calling for oral testimony of an agreement which had been reduced to writing. Equally incorrect is the assertion of the ninth assignment. [26] of error that the court refused to permit the defendant to testify as to whether or not he relied upon the statements made him by the plaintiff’s agent. It appears that the objection sustained was to allowing deféndant to testify as to what he thought. That being withdrawn, he was allowed to testify that he did depend and rely upon the statements of the agent. No other errors were insisted on in argument, and we find none. By the Court.— Judgment affirmed. Bardeen, J., took no part.