Booker v. Pelkey

Jones, J. Three of the defendants have not demurred to the complaint but have answered. It could not seriously be argued that as to them the complaint states no cause of action. It alleges a series of misrepresentations by them as to material facts whereby the plaintiff was misled and deceived as to the relations of one of the parties to the vendor, the condition of the premises and their productiveness, that the lowest asking price of the owner was $7,500, and that the plaintiff was thereby induced to pay $7,500 for land only worth $5,500. Although it is not charged that the other two defendants made these representations, there were allegations that all the defendants planned and conspired to conceal from the plaintiff that Sharp was a broker, which under the circumstances was a very material fact; that they helped to plan the ways and means by which the fraud could be consummated ; that the appellant Pelkey took an active part in giving instructions as to concealing material facts, arranging conferences, and drawing papers; and that the appellant Braseati “aided the defendant S. G. Pelkey in all matters as heretofore alleged in regard to S’. G. Pelkey, and was the receiving agent of the $500 paid down by this plaintiff.” It is further alleged that the appellants shared with the others in the proceeds of the fraud. In our opinion the allegations of the complaint can only lead to one conclusion, namely, that all the defendants, by fraud and misrepresentation, obtained from the plaintiff $2,000 more than the land was worth and more than the asking price of the vendor, and unlawfully appropriated that amount to their own use. It is argued by appellants’ counsel that the complaint does not show a conspiracy to defraud by making false and material representations. This argu [28] ment is well answered by the language of Mr. Chief Justice Winslow in Hull v. Doheny, 161 Wis. 27, 152 N. W. 417: “It is not, as seems to have been thought, an action of conspiracy, but an action to recover damages for a wrong committed by a number of persons who have agreed to act together to accomplish that wrong, all being liable for all acts committed by any one of their number in furtherance of the' concerted plan of action. The conspiracy is alleged simply as a means of connecting all the defendants with the overt acts of each individual.” The appellants’ counsel also rely on.their claim that false representations by which plaintiff was induced to pay $2,000 more than was asked or wanted by the owner, and that he would not take less than that amount, were not actionable. Although in other states there is authority for this contention, we cannot agree to it. Such misrepresentations are not mere statements of opinion, but relate to facts known to defendants and unknown to the plaintiff. They are statements well calculated to influence a buyer and on which he has a right to rely. The rule that such misrepresentations are actionable was declared by this court in a recent case. Estes v. Crosby, 171 Wis. 73, 175 N. W. 933, See 8 A. L. R. 1377 and annotation. The argument that two causes of action are improperly joined is not sound. According to the allegations of the complaint, although the several defendants took different parts in the plan to defraud, their efforts were directed to a common end and they were all sharers in the unlawful gain§. We do not agree that there should be a different rule of damages applied to any of the defendants. They would all be liable for. the actual loss suffered by the plaintiff, that is, the difference between the value of land at the time of the sale and its value as represented, or the difference between the asking price and the amount he was fraudulently induced to pay. By the Court. — Order affirmed.