Knerzer v. Worthing

Eschweiler, J. The trial court was led to the conclusion that he must reverse the answers of the jury to the third and fifth questions supra because, from those allegations in the complaint quoted above; the statements therein must be reasonably construed as fixing the limit of plaintiff’s belief in any representations by defendant as to cultivated acreage at no more than 120 acres. That though defendant made a representation that there were 130 acres, yet plaintiff, by his own admissions not believing it, could not in law say that he relied upon it, and that therefore one of the essential elements in an action for damages for alleged misrepresentations was here absent. In this view we think the trial court was correct. Giving a reasonable construction to those material allegations in the complaint, they must be construed as alleging that he knew before closing the transaction that the positive representation as to 130-acres was not true and correct. No application was made on the-trial that the plaintiff be allowed to amend the complaint in this regard, nor, in view of his testimony on the trial and on his adverse' examination, could such amendment properly have been allowed. While such allegations in a pleading [43] whether verified or unverified, are not absolutely conclusive against a party, nevertheless they are receivable in evidence as an admission against interest, subject of course to the right to explain by proper showing of mistake or misunderstanding, but no such showing is here made. Schoette v. Drake, 139 Wis. 18, 22, 120 N. W. 393; Tullgren v. Karger, 173 Wis. 288, 296, 181 N. W. 232; Savich v. Hines, 174 Wis. 181, 183, 182 N. W. 924; Jones, Evidence, § 272. This cannot be called a mere variance between the pleading and the proof, as argued by plaintiff. Plaintiff also argues that at most he had but a suspicion that the representation as,to the 130 acres, was false and that therefore he might rely upon such statement notwithstanding suspicion, and several cases are cited holding that a mere suspicion is insufficient to prevent a reliance upon representations. We have examined such cases, but find none to meet the situation here or that change our view above expressed upon the present record. The conclusion of the trial court, therefore, that the. plaintiff could not have relied upon such representation as an inducement to the transaction is reasonable, proper, and must be supported. This ruling malees it unnecessary to consider other questions presented. By the Court. — Judgment affirmed.