186 Wis. 113 | Wis. | 1925
This action was brought to recover the purchase price of certain goods, wares, and merchandise sold to the defendant. The defendant interposed a counterclaim alleging that at the time of the purchase of said goods, wares, and merchandise he was running a soft-drink parlor at the city of Waterloo; that a portion of said goods, wares, and merchandise was a composition of beef, ird!n, and wine containing about eighteen per cent, alcohol,r-and that the remainder of said goods was wine of pepsin, containing twenty-five per cent, alcohol; that plaintiff at the time of said sale represented to the defendant that it had a legal right to sell the said goods to the said defendant by special per
A demurrer to the counterclaim was overruled. It should have been sustained. While in form some of the alleged misrepresentations were representations of fact, such as the representation that the plaintiff “had a copy of the law which permitted the sale of the same,’.’ and perhaps the representation that “plaintiff had a legal right to sell the said goods to said defendant by special permission which it had from the prohibition officers of the United States and of the state of Wisconsin,” the gist and substance of all the representations was that plaintiff had a lawful right to sell said products to the defendant. The defendant was charged with knowledge of the. law. It must be presumed that he knew that the sale of - such product for beverage purposes was' unlawful
/Here we have two parties, sui juris, dealing at arm’s length. No confidential relations existed between them./The question was whether these products might lawfully be handled by the defendant in his soft-drink parlor. The gist and substance of all the alleged misrepresentations bore upon the ultimate question of whether defendant might lawfully do so. The misrepresentations were clearly misrepresentations as to the law. They were not misrepresentations of fact, and the situation is governed by the case of Gormely v. Gymnastic Asso. 55 Wis. 350, 13 N. W. 242, where it is said that “a false or mistaken representation as to what the law is upon an admitted state of facts is no basis of an' action, especially where there are no confidential relations between
It is to be noted that the counterclaim does not contain a single allegation of any representation on the part of the plaintiff that the defendant could lawfully sell these products. The allegations are all to the effect that plaintiff represented that it (the plaintiff) had lawful right to sell the products to the defendant. While such representations have nothing to do with the right of the defendant to sell said products, we have disposed of the question on the assumption that the alleged representations were to the effect that the defendant had a legal right to handle and sell said products.
■ By ■the Court.- — Order reversed, and cause remanded with instructions to sustain the demurrer to the counterclaim.