Knudson v. George

Winslow, C. J. When a person induces another to purchase land by making materially false representations as to its quality or quantity under circumstances which entitle the vendee to rely thereon, the vendee may rescind the contract and recover the purchase money or may affirm the sale and recover the damages which he sustains. Baker v. Becker, 153 Wis. 369, 141 N. W. 304, and cases cited. And this he may do whether the representations were made fraudulently or merely negligently. Miner v. Medbury, 6 Wis. 295; McKinnon v. Vollmar, 75 Wis. 82, 43 N. W. 800; Kathan v. Comstock, 140 Wis. 427, 122 N. W. 1044; Stelting v. Bank of Sparta, 136 Wis. 369, 117 N. W. 798. The complaint charged a sale of the land by the defendant tq the plaintiffs, and had this been proven doubtless the principle above stated would have applied and the plaintiffs [523] would bave been entitled to recover, but tbe court found tbat the transaction was in fact a joint adventure in which all the parties embarked for mutual gain. This was the nature of the transaction as claimed in the answer, and the evidence in support of this finding is quite satisfactory, if not substantially undisputed. In any event the plaintiffs are in no situation to complain of it now, for they did not ask the-court to submit the question to the jury, nor did they except to the finding of the court. Joint adventurers owe each other practically the same duties as partners. Marston v. Gould, 69 N. Y. 220; 23 Cyc. 453. Partners owe each other the exercise of good faith and ordinary care and prudence, and if loss occurs by the conduct of one partner the loss falls on the firm unless there has been default by that partner in the performance of one or both of those duties. Carlin v. Donegan, 15 Kan. 495; Bohrer v. Drake, 33 Minn. 408, 23 N. W. 840; 1 Lindley, Partn. (2d Am. ed.) 386. The situation of a partner or joint adventurer is quite analogous to the situation of one who contracts to render services to another. He contracts for good faith and integrity, but not that he will commit no errors. For negligence, fraud, and dishonesty he is liable, but not for nonnegligent mistakes. If he contracts for a particular or extraordinary degree of skill or expertness, a higher degree of diligence and skill will be required of him. Noble v. Libby, 144 Wis. 632, 129 N. W. 791. It follows that the defendant ought not to have been discharged from liability simply because he was not guilty of fraud or bad faith. As a joint adventurer and one claiming superior skill in the locating of land he owed his colleagues the exercise not only of care but of a higher degree of skill than the ordinary man, namely, that degree which would be and ordinarily is exercised by persons skilled in the business under similar circumstances. The question whether, the defendant fully discharged this duty has never [524] been tried or decided in this case. It is true that no request was made that the question be submitted to the jury or passed upon by the court, and it is also true that the point is not made by the appellant in his brief on this appeal. This court is not now fettered by any such omissions. If it appears to the court from the record that “the real controversy has not been fully tried” or that justice has miscarried, this court may give relief regardless of the failure to take proper exceptions or frame proper pleadings. Sec. 2405m, Stats. In this case there were really two serious questions on the merits, viz.: (1) Was the defendant guilty of fraud or bad faith in showing the plaintiffs the wrong piece of land ? (2) If not, then did he fail to exercise that degree of diligence and skill in locating the land that a woodsman of his supposed skill ordinarily exercises under like circumstances ? The first of these questions has been tried and decided without error, and the conclusion is deemed to be amply supported by the evidence. That issue will not again be opened, but the second question has never been tried, and it seems to the court that as to this question the case falls squarely within sec. 2405m, supra. It will not be necessary to amend the pleadings. The question suggested is very simple and may be determined by the trial court without a jury upon the evidence already taken on the first trial, and such additional testimony relevant to that question as the parties may produce. If it be found by the court upon the trial of this question that the defendant was negligent in locating the tract under the principles laid down in this opinion, the plaintiffs will be entitled to recover their damages, which will be the difference between the value of the land actually purchased and the land which they were led to believe they were purchasing. Gunther v. Ullrich, 82 Wis. 222, 52 N. W. 88; Krause v. Busacker, 105 Wis. 350, 81 N. W. 406. These sums have been already fixed by the verdict of the jury without material error, and the question will not need to be again tried. [525] If, on tbe other hand, the court shall find that the defendant was not negligent in locating the land, he will be entitled to dismissal of the complaint. ■ By the Court. — Judgment reversed, and action remanded for further proceedings in accordance with this opinion.