Westra v. Roberts

ViNje, J. Tbe defendants’ claim upon tbe merits is that, since plaintiff viewed tbe land and bad an opportunity to examine it and determine for himself bow many acres there were under tbe plow, representations made relative thereto by the defendants could not be made tbe basis of an action for damages, but would come within tbe rule that representations as to a fact easily ascertainable by tbe purchaser by tbe exercise of ordinary vigilance are not actionable. Tbe jury found against them upon tbe proposition that plaintiff could by tbe exercise of ordinary observation ascertain tbe number of acres of arable land. Does tbe evidence sustain such a finding? Plaintiff and defendants spent several hours in walking over tbe 120 acres and examining them. Tbe evidence as to tbe location and shape of the arable land is very meager and unsatisfactory. It appears, however, that a marsh divided tbe land into two pieces, and that there was cultivated land on both sides of it. Defendants represented there were eighty apres under the plow. The evidence showed there were only about sixty-six, or about fourteen acres less than represented. If the arable land had been in one piece of a rectangular shape, say 80 or 160 rods long, it might well be said, perhaps, that a person could by ordinary observation discover a shortage of fourteen acres. But when the plowable land consists of two or more pieces of presumably irregular shapes, it cannot be said that a finding of a jury that a shortage of fourteen acres could not have been discovered by plaintiff by ordinary observation is not supported by the evidence. The jury’s finding is further supported by the fact that plaintiff was a native of Holland who had lived in Indiana four years, then gone back to Holland and remained for twelve years, and had again recently come [233] from that country. It is fair to assume that his ability to ascertain the area of land in acres was not equal to that of an average man of his age, on account of his lesser familiarity with our unit of land measure. , The representations made clearly related to facts which materially affected the value of the farm. And the unequivocal statement as to the number of acres under plow was well calculated to set at rest plaintiff’s desire to ascertain that fact. When false representations as to material facts are made under such circumstances that the purchaser is justified in relying thereon, and he does so and sustains damage, the cause of action is complete. Davis v. Nuzum, 72 Wis. 439, 40 N. W. 497; Castenholz v. Heller, 82 Wis. 30, 51 N. W. 432; Porter v. Beattie, 88 Wis. 22, 26, 59 N. W. 499 — as to true boundary lines or quantity; Tyner v. Cotter, 67 Wis. 482, 30 N. W. 782 — as to title to real estate; Miller v. Hackbarth, 126 Wis. 50, 105 N. W. 311 — as to title to personal property; Woteshek v. Neuman, 151 Wis. 365, 138 N. W. 1000— as to amount of taxes due on certain city lots. Error is alleged because the court refused to include in the special verdict the following questions submitted by the defendants : “(1) Did the plaintiff exercise due diligence as an ordinary prudent man would to ascertain whether the representations were true or not ? “(2) Did the plaintiff have ample opportunity to ascertain whether the representations were true or untrue before the closing of the sale?” They claim that the answers to these questions would have determined the fact as to whether or not the plaintiff had a right to rely upon the representations made to him as to the quantity of arable land. The jury found that false representations as to quantity of land under plow were made to him by the defendants for the purpose of inducing him to purchase, that he believed them and relied upon them, that [234] be did not know their falsity and by ordinary observation could not have known thereof. These findings necessarily include the finding of the fact that he had a right to rely upon the representations made to him, and it was not error, therefore, to refuse the questions submitted by the defendants. Exception is also taken to the use of the word “actually” in the question “Did the plaintiff, when he purchased said farm, actually know how many acres were under plow ?” and also to the use of the word in the instruction relative thereto, where the court said: “By your answer to this question you are to determine whether the plaintiff, when he purchased the farm in question, actually had in mind the number of acres of land that were under plow.” It is urged that under this question and the instructions relative thereto the court" required the jury to find that plaintiff knew the exact quantity of plowable land before they could answer the question in the affirmative. We do not think the jury so understood the question or the instruction. The real issue made by the evidence was whether plaintiff was in fact misled to his disadvantage by the representations made as to the amount of land under plow. In other words, whether he knew, or by the exercise of ordinary observation could have known, that there were not ait many acres under the plow as defendants said there were. ■ The claim that under the question relating to damages the jury were allowed to pass not only on the representations as to the number of acres, but as to all representations made by the defendants during the negotiations for the sale of the farm, is clearly not supported by the record. In the instructions relative to this question the jury was clearly limited to the damage sustained by reason of the false representations as to the number of acres under plow, and none other. The court said : “You will determine the fair market value of the farm as it actually was when the sale was made and then determine [235] what tbe fair market value of t¿ie farm would bave been bad tbe farm contained tbe number of acres under plow represented by tbe defendants; then subtract tbe one sum from tbe other and tbe difference will be your answer to tbis question.” It is clear tbat under tbis instruction tbe jury were strictly limited to tbe difference in market value between tbe farm as it was and as it would bave been bad it contained tbe number of acres under plow as represented by tbe defendants, and tbat tbe jury was not permitted to, and did not, take into consideration any statement as to tbe character of tbe soil, or tbe expression of any opinion relative to tbe value of tbe farm which may bave been made by tbe defendants during tbe negotiations leading up to tbe sale thereof. Since tbe correct measure of damages was submitted to tbe jury under proper instructions limiting them to representations made as to tbe quantity of arable land, and since there is ample competent evidence, within tbe rule laid down by tbe court, to sustain tbe damages found, othey alleged errors as to tbe reception of evidence claimed to bear upon tbe question of damages, but not within tbe rule stated by tbe court, become nonprejudicial and immaterial. By the Court. — Judgment affirmed.