Stelting v. Bank of Sparta

Mabshall, J. The evidence shows, quite clearly, that appellant employed Bartlett to procure a purchaser for its Dakota land; that pursuant thereto he assumed to point out the land to plaintiff’s representative; that relying thereon the contract sought to be annulled was made, and that neither party thereto, at the time thereof, knew but that the right land had been in fact shown to such representative. Bartlett’s employment undoubtedly included authority to do the things ordinarily done in such cases to procure a purchaser for the property (Arnold v. Nat. Bank, 126 Wis. 362, 105 N. W. 828), and whether by fraud or mistake he pointed out the wrong land, upon the contract being made on the faith of his act the mistake or fraud became in effect that of the defendant. The law in that regard has been stated over and over again by this court. The rule as phrased in the syllabus to McKinnon v. Vollmar, 75 Wis. 82, 43 N. W. 800, has been so many times applied as to be regarded as elementary. “Where the wrong land is pointed out to intending purchasers, whether intentionally or not, by an agent of the vendors, and the purchase is made in the belief that the land purchased was shown, the consideration paid may be recovered, although the vendors did not know, when it was paid, that the wrong land had been shown.” [372] See, also, Gunther v. Ullrich, 82 Wis. 222, 52 N. W. 88; Fintel v. Cook, 88 Wis. 485, 487, 60 N. W. 788; Zunker v. Kuehn, 113 Wis. 421, 88 N. W. 605; Fraser v. Ætna L. Ins. Co. 114 Wis. 510, 90 N. W. 476. Aside from tbe matter of law above referred to, there are presented only questions as to whether the findings are supported by the evidence. The record in that regard has been carefully examined and the conclusion reached that such findings are not contrary to the clear preponderance of the evidence in- any material particular. Therefore under the rule governing the subject they cannot be disturbed. By the Court. — The judgment is affirmed.