Eberhardt v. Randall

RoseNBErby, J. The sole question presented on this appeal is whether or not the evidence sustains the fourth finding hereinbefore set forth. This case has been carefully presented and ably argued by counsel on both sides, they having in mind the rule that this court will not set aside the findings of the trial court unless against the great weight or clear preponderance of the evidence. Under that rule we do not approach the determination of the question submitted here as triers of fact in the sense that that term is ordinarily understood. Before we can disturb the finding of the trial court we must be satisfied from a consideration of all the evidence that it appears that the trial court found against the great weight or clear preponderance of the evidence. A fair presentation of the question presented by this record would require a restatement of the entire evidence. This, as has often been said, we will not make. But the unusual character of this case and the fact that we are not all agreed justifies some further treatment. The farm in question consisted of six governmental subdivisions or forties of land situated in the northeasterly corner of section 33, 160 rods on the north line and 240 rods on the east line. The westerly part of the farm consisted of uncleared land covered with oak, popple, and other small timber, commonly known as cut-over land. The easterly part of the farm was divided into several fields, the location thereof being fairly well indicated by plaintiff’s Exhibit 6, appearing on p. 483. It appears that the defendants Thomas Randall and Frank Randall examined the premises at least three times before the purchase was consummated. Thomas is a man about seventy years of age and has been a farmer all his life. [483] Frank is a man about forty years of age and has also been a farmer all bis life, the father and son living together at least a considerable part of the time. The testimony of the defendants Thomas and Frank is to the effect that plaintiff represented that there were 125 acres of cultivated land upon [484] the premises in question. This testimony is squarely denied by the plaintiff, and be is corroborated to some extent at least by Radke, the agent through whom the transaction was consummated. The proposition upon which the plaintiff mainly relies in this case may be stated as follows: It appeared that at the time the defendants Thomas and Frank were upon the premises they were told that the farm was composed of 240 acres; that it was divided by a fence running north and south into approximately equal parts. They admit that they understood and knew that the land lying west of this center fence was all wild and unimproved and that such cleared land as there was, was on the easterly side of the fence. It appears that on the easterly side of the fence there are some inclosed fields, A, O, E, and I; that the field marked “B” on the diagram is pasture land and not cultivated; that the southerly part of “D” is grubbed but not plowed; that a part of the field marked “E” is partially cleared but not plowed. The contention of plaintiff is that any experienced farmer going upon the premises, knowing that the north and south fence divided the farm into approximately two equal parts, must have known that there could not be 125' acres of land on the easterly side of the fence, when the fields “B,” “II,” “E,” and part of “D” by casual inspection could be seen not to be cultivated land. It must be admitted that there is considerable force to this contention. It appears, however, that the cleared land is not in the form of square fields, that the fences do not follow the lines indicated on the diagram, and that the cultivated land is of irregular shape, making it very difficult to correctly estimate its area. It appears that the defendants moved upon the premises and did not discover the fact that the amount of cultivated land had been misrepresented to them until they were doing their spring seeding, when they discovered that the amount of seed they had purchased very much overran the acreage sowed. This led them to measure the premises, when they found that instead of there being 125 [485] acres of cultivated land there were as a matter of fact only sixty-one acres. The conduct of the defendants after making this discovery is not entirely satisfactory. They apparently did not make immediate complaint, wbicb they explain by reason of the fact, which appears to be undisputed, that plaintiff, at least a great deal of the time, was without the state and beyond their reach. But they are not here seeking a rescission of the contract. By their counterclaim they have affirmed the contract, but seek damages by reason of the false representations. Upon a careful examination and study of the evidence we are not able to say that it appears that the findings of the trial court are against the great weight or clear preponderance of the evidence. So much depends upon the relative ability and capacity of the parties that that may have been the determining factor in the mind of the trial court. We cannot apply to testimony in cases of this kind established standards of measurement; we cannot reason about it, or view it in the light which it might be viewed by a man of average experience, intelligence, and understanding. It must be viewed, as no doubt the trial court viewed it, from the standpoint of the persons to whom the representations were made, in the light of their capacity to appreciate and understand the situation in which they were placed; that and a great many other intangible elements enter into the determination of the trial court which cannot be made to appear upon a printed record. Carlson v. Dixon, 155 Wis. 63, 65, 143 N. W. 1064. It is a matter of common knowledge that it is very difficult to estimate the area of unfenced fields, especially where, as here, they are of irregular shape and surrounded by brush preventing a view from one field to- another. It may well be that plaintiff was guilty of no intentional wrong. One of his witnesses, an experienced real-estate man who went there to examine the premises, said that he estimated the cleared land at nearly 120 acres. A careful reading of the testimony con [486] vinces us that the fact that the trial court found against the defendants in respect to the quack grass and the amount of grubbed land does not necessarily in this case impeach their testimony. This case has had our careful consideration, and, applying to it the principles of law well established in the jurisprudence of this state, we are unable to say that the findings of the trial court are against the great weight or clear preponderance of the evidence. By the Gourt. — Judgment affirmed.