Wooster v. Weyh

Eschweiler, J. Appellant Weyh contends in substance that his demurrer ore tenus to the amended complaint should have been sustained; that the court erred in finding fraud in the sale of the note and mortgage; in finding that the plaintiff Allie T. Wooster used due care on his part; and in refusing to receive certain evidence. Pie also suggests that he was denied the. right to trial by jury. We find no merit in the first ground here urged, namely, that the complaint fails to state a cause of action for fraud, or that it disclosed .such a prior election of remedy that the plaintiff could not resort to his present claim for damages for fraud, or that it showed affirmatively that there was no damage to plaintiffs for which a recovery could be had. Such several objections are all untenable and not necessary for more detailed discussion here. The amended complaint was not interposed until after a sale of the property on foreclosure, the entry of a deficiency judgment, a futile attempt to collect from the mortgagor, and no other means of redress apparent. Stephens v. Wheeler, 193 Wis. 164, 213 N. W. 464. The arguments made that there was no actionable fraud committed by. defendant towards plaintiffs in the transaction and that the plaintiff Allie T. Wooster, who alone acted and for himself and wife, did not exercise the degree of care the law requires of a person so situated and dealing at arm’s length with the appellant, may be considered together. The testimony is not very clear and definite, as to any precise representations made and precise reliance placed thereon by plaintiff in the transaction of October 6th. [90] The following significant, and we deem controlling, facts do, however, appear beyond dispute, namely: that the abstract of title submitted, although it had not been extended beyond March 14, 1921, being prior to the release of the thirty acres, disclosed that the mortgage covered a farm of about 300 acres; the written assignment of the mortgage, the language of which is above set forth, clearly amounted to a representation, as a matter of fact, that the land covered by the original mortgage was identical with that which plaintiff would naturally, and could properly, understand to be included in the security covered by the mortgage as then being assigned to him. This assignment clearly carries the idea from its language that all and not a part only of the right, title, and interest conveyed by the original mortgage in and to the lands described therein was then and there being assigned to the plaintiffs. This was strengthened by the express covenant in such assignment that said Weyh has good right to assign the said note and mortgage. While it is true that it would have been far better business precaution for the plaintiff, upon examining the abstract and learning therefrom the long period that had elapsed since its last entry, to have insisted that it should be carried down to date before being relied upon as an assurance of then complete title, yet the assignment itself, speaking as it .did in the present tense and of the very date of the transaction, was an explicit statement as of a matter of fact as to the security being then, as before, on the entire property described in the mortgage, so that such situation, with all the attendant facts, presented a matter much more properly to be disposed of by a trial court, with the witnesses in person before him, than it can be by us upon the mere printed page, that we are not at all disposed to overturn the conclusion reached by the trial court. Especially is this so when no excuse is offered by Weyh other than that he didn’t know that plaintiff didn’t know, for his silence on these features or any explanation, such as possible forgetfulness on his part [91] of having executed the release of the thirty acres and receiving the $500 therefor, or of his further failure to disclose the fact that the ostensible payments of interest indorsed on the note had as a matter of fact not been made, and that which appeared on its face to be an obligation lived up to the letter by the maker, as a matter of fact was far different. His silence as to such matters could properly be considered as an indorsement of that which was represented by the writings and that they might be taken at their face value. We know of no rule of law that requires one, even when dealing at arm’s length with another, to question the honesty and good faith of such solemn representations as to important material facts as were in effect conveyed by the indorse-ments on the note and the recitals in the abstract and assignment. That the note was indorsed without recourse by appellant Weyh, a circumstance much dwelt upon on this appeal, we do not consider of weight. His desire to avoid personal liability as indorser of such an obligation is far from being sufficient to place the duty on the one with whom he is dealing to suspect that there is concealment of material facts or misrepresentation concerning them. We are satisfied, therefore, that there was sufficient to justify the conclusion reached by the trial court that there was such a species of fraud by reason of the concealment of material facts and the misrepresentation as to the actual facts embodied in the written assignment itself and alone as to fully support his conclusion that the plaintiffs are entitled to the damages allowed. Appellant further urges that he was deprived of his right of trial by jury on the issue of fraud. The right he had to such trial by jury was one that may be waived. Leonard v. Rogan, 20 Wis. 540, 543; Charles Baumbach Co. v. Hobkirk, 104 Wis. 488, 493, 80 N. W. 740. It was clearly waived in this case by appellant proceeding to trial without in any manner calling the matter to the attention of the [92] court or suggesting that a trial by jury on this issue was desired or demanded. He certainly ought not now to be heard tó urge as grounds for reversal of this judgment that which he could so easily have asserted at the proper time and which he so plainly neglected or did not desire then to present and urge. On plaintiffs’ motion to review, under which it is claimed that-the trial court, having found that there was fraud, should have awarded as damages $349.15 more than the $1,400, namely, the full amount of the deficiency judgment ■of $2,749.15 (less the $1,000 to be paid by others for-the highway), we are satisfied that the trial court was clearly right in disposing'of this feature of the case as he did. There was no showing made in the record upon which the court could allow other damages than the $1,400. The record discloses no error 'in rulings on offers of evidence. ' • By the Court. — Judgment affirmed in all things, plaintiffs to have costs in this court.