Leickem v. Babe

Eschweiler, J. Defendants contend, among other things, that the action was brought by the plaintiff to rescind the contract rather than to recover damages, and that the [605] court therefore erred in allowing the amendment increasing the damages from $400 to $1,000 and in granting judgment for $750 as damages. The complaint as drawn was certainly ambiguous, and not as definite as might be in indicating which remedy, rescission in equity or damages at law, plaintiff had elected to pursue. If it was rescission, the action was triable by the court; if for damages, by a jury. The defendant, however, raised no objection to this case being called for trial and being tried before a jury, and entered no objection or protest when the court indicated his construction of the complaint to be that it was for damages. The defendant is too late now to raise for the first time and on appeal such question. In re Assignment of Milwaukee S. & W. Co. 186 Wis. 320, 329, 202 N. W. 693. We shall not now determine whether any of the five several alleged false representations specified in the special verdict should be deemed immaterial or not a proper element to be the. basis of such an action for damages. Nor shall we do more than call attention to the anomalous situation, presented in this verdict, by which it is found that each one of four several false representations, if it had been true, gave a value to the land of $800, thereby apparently placing the value of the property, by a combination of all the representations, at much more than $800. • It must suffice for the disposition of this case to say that an examination of the record satisfies us that extravagant and unfounded statements were made as to this distant property and that such might have been properly relied upon by the plaintiff as inducements for his entering into the contract. The only testimony upon which the jury predicated their finding that the value of the forty acres of Michigan land was nothing, rather than the $800 value which they find the defendants represented it to have, was upon that of the plaintiff himself. Rather than take the testimony of someone [606] in the neighborhood of the land and familiar with its value, plaintiff elected to testify that he was competent as a witness on value. 'His knowledge of farm values was based upon his having farmed in his early life; he never had been in the locality of this Michigan land before; he then looked at the land but did not go over all of it; he made inquiries from people at the county seat, some twelve miles away; he ascertained that it was assessed at $5 an acre or $200; and gave it as his judgment that its market value was nothing. His testimony in this regard was repeatedly and expressly objected to by defendant on the ground that his competency as a witness had not been shown. The trial court at first indicated that such objection was well taken, but subsequently ruled that it presented a jury question and permitted him to so answer. If such ruling meant that the question of his competency was one for the jury and not for the court it was clearly erroneous. If it meant that the court held him competent to so testify, but that the weight of his testimony was for the jury, we shall not disturb such ruling. In any event, however, we think that upon all the testimony, especially considering the fact that defendant has paid an obligation of plaintiff’s, namely, the $200 chattel mortgage, it must be said that the damages as found by the jury and fixed by the court are too high. We think, however, it would be an unnecessary hardship-to have this case retried. 'For that reason, therefore, and in furtherance of justice, we determine that if plaintiff elects to reconvey to defendant Dickmcm the forty acres, that then the plaintiff may have judgment against the defendants for $400 with interest from the commencement of the action and for the return and release of the $200 note and mortgage; or in case plaintiff refuses, within thirty, days after the return of this record to the circuit court, to accept such option, that then the defendant have a new trial. Appellant to have costs in this court. By the Court. — Judgment reversed, with directions.