Francois v. Cady Land Co.

WiNsnow, C. J. The action was brought upon a supposed contract of guaranty. This is apparent from the complaint. Upon the trial the plaintiff’s evidence showed that the defendant’s agent, at the time plaintiff purchased the mortgage, represented that the mortgaged property was worth somewhere from $4,500 to $5,000, and that he relied upon the representation. The defendant’s agent admitted that he stated that in his opinion it was worth $4,500. At the close of the evidence in the case and on June 16, 1911, the plaintiff was allowed to amend his complaint by adding after the allegation that the mortgaged real estate was not worth the face of the mortgage and that the defendant knew that fact, the following words: “but represented to the plaintiff that said property was worth $4,500, but as matter of fact it was not worth more than $2,000.” The reason for the making of this amendment is not obvious. If the idea was to state a cause of action in tort [118] for damages caused by false and fraudulent representations it was entirely insufficient, because it did not allege that tbe plaintiff relied upon tbe alleged representation in making tbe purchase. A false representation must be relied and acted upon in order to be actionable. Puffer v. Welch, 144 Wis. 506, 129 N. W. 525. So tbe amendment did not change tbe complaint from contract to tort, even conceding that such a change could have been properly made under tbe provisions of cb. 353 of tbe Laws of 1911 (sec. 2669d, Stats.), allowing tbe making of amendments changing a cause of action from contract to tort, which act took effect June 17, 1911. If it be argued that tbe form of tbe pleading should be disregarded, that tbe evidence of fraud came in without objection, and that, tbe verdict having determined tbe fact of reliance, there should be judgment for tbe plaintiff thereon, tbe answer is that there is no finding that tbe representation of the value of tbe mortgaged property was a representation of fact. It is very well known that statements of tbe value of property about to be sold, where inspection is open to tbe buyer, are ordinarily regarded as merely expressions of opinion, and will not be regarded as statements of fact on which actionable fraud can be based, in tbe absence of extrinsic circumstances, like fiduciary relations or artifice, by which tbe vendee is prevented from making investigation himself. Horton v. Lee, 106 Wis. 439, 82 N. W. 360. There was no finding of any such extrinsic circumstances here, and no request by tbe plaintiff to submit any questions covering such matters. It must be considered, therefore (conceding that the questions were material), that they were determined by tbe circuit judge in conformity with tbe judgment. Sec. 2858m, Stats. (Laws of 1907, ch. 346). Indeed, tbe finding actually made by tbe court seems in effect to cover tbe question and make tbe expression relied upon simply an opinion. These considerations dispose of tbe tort features of tbe case, if any there be. [119] As to tbe contract feature little need be said. It is clear that if there was any contract at any time it was a contract to answer for the debt, default, or miscarriage of another, and such contracts are void if not in writing. Sec. 2301, Stats. (1898). The reasons’why there can be no recovery on contract seem to be so numerous as to be almost embarrassing: (1) The jury found as a fact that none was made at the time of the sale; (2) if any promise was made before the sale, the evidence shows that it was nothing more than a naked promise without consideration of any kind; (3) whether made before or at the time of'the sale, it was void because not in writing. By the Court. — Judgment affirmed.