Brustman v. Dunn

Kerwin, J. Tbe real controversy here under tbe assignment of errors is that tbe findings are not supported by tbe evidence and that tbe court erred in denying costs, including attorney’s fees stipulated in tbe mortgage. The learned trial judge in a written decision held that tbe allegations of tbe counterclaim were well supported by tbe evidence, and from a careful examination of tbe record we are convinced that such conclusions are correct. Contention is made by counsel for appellant that tbe representations were mere matter of opinion. Tbe court below held, and we think correctly, that they were statements of fact fraudulently made with intent to-deceive, which were relied upon by tbe defendants. This court held in J. H. Clark Co. v. Rice, 127 Wis. 451, 106 N. W. 231, that tbe fact that a statement takes tbe form of an expression of opinion is not always conclusive. When there is doubt as to whether it is made as mere expression of opinion or a statement of fact tbe question must be determined by tbe court or jury. [311] It is contended by counsel for appellant that because the-defendants asked extension of time of payment of the notes, which extensions were refused, the defendants waived the fraud, and that such requests and subsequent payment of the $100 note amounted to a waiver. The court below held that such acts on the part of the defendants did not amount to a waiver and that there was no intention on the part of defendants to waive their claim for damages on account of the fraud, nor did it estop the defendants from insisting upon their cause of action for fraud. It is clear from the evidence that the findings to the effect that there was no intention to waive the fraud are well supported, and it is also clear upon the established facts and the-law that'the mere requests to extend time on the notes which were refused did not amount to an estoppel or waiver of the. cause of action for fraud. Jacobsen v. Whitely, 138 Wis. 434, 120 N. W. 285. Claim is also made by appellant that he should have been allowed costs including the stipulated solicitor’s fee. The question of costs was within the discretion of the court and there was no abuse of discretion in denying costs. Spengler v. Hahn, 95 Wis. 412, 70 N. W. 466. By the Gourt. — Judgment affirmed.