Griffiths v. Cretney

SiebeCKER, J. It is urged that the court erred in retaining jurisdiction of the cause to award plaintiffs damages after determining that a judgment for a rescission of the deeds and transfers of the lands involved could not be awarded as prayed for by the plaintiffs. The appellants’ contentions, embrace two questions: first, Is the case one which the court may retain if rescission could not be awarded, and grant relief by way of damages; secondly, Do the facts and circumstances shown present a case for an award of damages ? As-to the first question, the practice is well established that when a court of equity has obtained jurisdiction in a suit for cancellation of instruments transferring interests in lands, and it is disclosed by facts elicited on the trial that the special relief prayed for has become impracticable and that plaintiffs151 are entitled only to the alternative relief of damages, the court may retain the cause to do justice between the parties. This practice was adopted and the rule applied in Hall v. Delaplaine, 5 Wis. 206; Combs v. Scott, 76 Wis. 662, 45 N. W. 532; and Lindsay v. Fricke, 130 Wis. 107, 109 N. W. 945. It is undisputed that the defendant Jones had title to the lands at the time plaintiffs demanded a reconveyance thereof on account of the alleged fraud. It furthermore appears that Jones thereafter conveyed title to 160 acres of the farm to third parties, and hence no cancellation and rescission could be awarded. It does not, however, appear that plaintiffs knew that the defendants Collins and Cretney had conveyed their interests to the defendant Jones and that Jones had conveyed title to a portion of the land to a third person before the commencement of this action, and therefore the court retained the cause to award plaintiffá damages to compensate them for the losses sustained through the fraud found. The action of the court, under the circumstances of the case, was proper within the rule of the foregoing decisions. It is contended by the defendants that the trial court erred in finding that they falsely and fraudulently misrepresented the value of the wild lands in Barron and Rusk counties, that such false and fraudulent representations were intentionally made by defendants to deceive the plaintiffs in this respect and with the object and intent to induce plaintiffs to make the exchange of properties as effected in the transaction under investigation, and that the plaintiffs relied thereon and were thereby misled to their daipage in the sums found. The evidence abundantly establishes the court’s conclusion that William T. Griffiths was addicted to the morphine habit and that his indulgences therein had seriously affected his mind and memory and had very much impaired his capacity and ability for the transaction of business. On this subject — 152 — the court declares that as to him, “the testimony in this case convinces me, coupled with the observation of the man, that in this business transaction now under consideration he did not have a clear comprehension of the situation.” As to the brother Jobn the court states: “I am satisfied from the testimony in this case and from my observation of the parties that John Griffiths is a man of hardly ordinary business intelligence — a man who has done very little of the business of the Griffiths Bros.” The facts disclosed on the trial tending to show that plaintiffs supposed they had made no transfer of their farm in the September, 1905, transaction, though it is undisputed they executed a deed which was recorded the next day and apparently with their consent, are cogent and persuasive as circumstances supporting the trial court in his conclusions as to plaintiffs’ mental capacity and their want of ability to comprehend and understand the full import and consequences of this transaction for the disposition of their farm. It also appears that Oollins had for a long time been their adviser in business affairs and in selling and buying land for them, and that they reposed trust and confidence in him as a promoter of their financial interest.. These relations existed at the time of the exchange of properties on September 12, 1905. The acts and conduct of plaintiffs in dealing with defendants on the occasion in question, which was in the main brought about through and by Oollins, must be considered in the light of 'all these existing conditions respecting plaintiffs’ abilities and capacities and their friendly relations to Mr. Oollins. A study and consideration of the evidence in support of the facts embraced in the foregoing statement-leads us to the conclusion that the plaintiffs on the occasion in question relied on the statements of defendants, principally made by Oollins, respecting the properties .embraced in the exchange, the values thereof, the terms and conditions to provide for payment of the moneys coming to them thereon, — 153 — as well as the loan from them to obtain a discharge of the execution levy on their stock. It is also manifest that their reliance on the truth of all the representations made to them concerning the properties induced them to make the exchange, and that they did not fully comprehend that the execution and-delivery of the deed to their premises, under the accompanying facts and circumstances, operated as a consummation of the transfer of the properties embraced in the exchange and effectually transferred their title and interest in the former. The appellants advance the argument that the facts and circumstances of the transaction through which the exchange was accomplished fail to show that their conduct in the matter was naturally calculated to deceive and mislead the plaintiffs. If plaintiffs were men of ordinary intelligence and had ordinary business capacities and abilities, this claim would be well founded; but, as above stated, plaintiffs are not such men and had not the ability to deal with the defendants in an adversary character on an equal footing for protecting their rights in the transaction. The situation was one peculiarly favorable to enable the defendants to mislead them by slightly colored false statements and thereby overreach and cheat the plaintiffs. Reading the case from this viewpoint, we are persuaded that the evidence justifies the trial judge’s conclusions to the effect that the plaintiffs relied on the statements and representations of Collins respecting the wild lands in Barron and Rusk counties and were thereby induced to believe they were of the value of $20 per acre, and that they accepted them as of that value in the exchange of properties. It is urged that the trial court deprived the defendants of •an opportunity to show the actual value of the wild lands, and that the court’s finding of their value is against the clear preponderance of the evidence on this subject. Complaint is made that the defendants were deprived of an opportunity to — 154 — furnish proof of the actual value of these wild lands, and that this resulted through the error of the court in refusing; to direct the referee to take proof on this subject after the conclusion of the trial on the issues of fraud. It is sufficient to say that the court’s refusal to make the requested order for the taking of evidence on this subject did not prejudice the-defendants, since the referee in fact received and reported defendants’ evidence thereon to the court, and the court considered it, as declared by him in his oral statement of his-final decision. We shall therefore treat- the evidence as received and as before the court. The trial court found the Barron county wild land was of the actual value of $6 per acre, and that in Rusk county $8 per acre, and 'that the-plaintiffs’ farm and the Kelly farm were of the value, fixed by the parties at the time of negotiations, of $27,000 and $11,000, respectively. It is urged that this value of the-plaintiffs’ farm is too high by $3,600. The opinion of witnesses familiar with this land and the value of such property sustains the value fixed by the parties and found by the court. We do not find that this value thus found is against the dear-preponderance of the evidence, and it cannot be disturbed. The appellants strenuously contend that the actual value - of the wild lands was not misrepresented by them and that no fraud was perpetrated upon the plaintiffs, as they claim,, and therefore plaintiffs were not injured in the transaction. The evidence on this subject is in irreconcilable conflict.. The witnesses called by the plaintiffs expressed their opinion that the actual value was from four fifths to two thirds less-than the price fixed in the exchange, while the opinion of defendants’ witnesses placed a much higher value on them and varied as above stated. Erom the evidence adduced it is clear that the lands had but very slight, if any, tillage value. The witnesses whose opinions were based on such considerations, if we take into account the character and availability of these lands for agricultural purposes, tend to sustain the court’s finding, while those witnesses who exhibited famil — 155 — iarity with land prices for trading and agricultural purposes-in these communities through their business as real-estate-brokers and agents placed values thereon which sustained defendants’ contentions. We are persuaded, after a painstaking search into the probative force of the evidence on the» subject of the value of these lands, that the extremes of the-opinions respecting such values do not furnish a sufficiently reliable estimate for the court to follow. We are also of the-opinion that the trial court’s finding of the value .of these lands is not sustained by the clear weight of the evidence and that the proof clearly preponderates in favor of a higher1 value. This we conclude upon consideration of all the data* as to their location, kind, quality, and general nature and availability as marketable properties under the facts shown.. Under these facts and conditions the trial court should have found that the evidence reasonably preponderated to show that these lands had a value of $12 an acre and that they should be so valued in arriving at the damages sustained by the plaintiffs through the misrepresentations on this subject.. The defendant J ones defends on the ground that he has in-no way participated in the alleged fraudulent representation-concerning these wild lands and was in no manner connected’ with the transaction as to make him jointly liable for the-fraud found by the trial court. It appeared that the defendants Cretney and Collins were partners engaged in the-real-estate business; that they solicited J ones to make an exchange of his Rusk county farm for an interest in the plaintiffs’ farm; that he agreed to such an exchange and put his1 farm into the deal at a fair value; and that he received in-return no more than its equivalent as a consideration. It also appears that he had no interest in the wild lands and that he did not in fact know or claim to know their value. The evidence furthermore discloses that he made no representation to plaintiffs of their value and heard very little, if anything, of the misrepresentations made by Collins in negotiating the trade. Under the circumstances there is nothing — 156 — to show that he participated or co-operated in any fraudulent ■conduct which induced the plaintiffs to make the exchange of properties. The fact that the title was taken in the name -of himself and Gretney and Collins is readily explicable as appropriate for subsequent adjustment of the mutual rights of the defendants. We find nothing in the record tending to show that Jones participated in the fraudulent conduct of Collins and Gretney or knew that such a fraud was being perpetrated on the plaintiffs. It is clear that he, under the circumstances, cannot he treated as a joint wrongdoer and be held liable for the damages resulting from the fraud. As to him the action should have been dismissed. The defendants Collins and Gretney were properly held for the resulting ■damages. The amount awarded we consider to have been ■excessive and must be reduced accordingly. In computing the damages the wild lands should be rated at $12 per acre instead of $6 and $8, respectively, for the Barron and Busk county tracts as allowed by the trial court. Supreme Court Eule 6 requires that the printed case shall contain an abridgment of the record so far as necessary to present the question for decision, and the evidence must be so abridged in narrative form. The case and the briefs of the defendants Gollins and Gretney violate this rule, and they thereby forfeit their right to recover costs for printing them. See Johanson v. Webster Mfg. Co. 139 Wis. 181, 120 N. W. 832; Skow v. G. B. & W. R. Co. 141 Wis. 21, 123 N. W. 138; Gerbig v. Bell, post, p. 157, 126 N. W. 871. By the Court. — The judgment is reversed, and the cause remanded with directions to enter a judgment dismissing the action as to Thomas H. Jones, and to award plaintiffs damages in the sum of $2,220, with interest against the defendants A. T. Gretney and Joseph Collins; no costs to be' allowed appellants for the printing of the case and the printing of briefs of Gretney and Collms.