193 Wis. 324 | Wis. | 1927
We shall not make a restatement of the matters covered in the former opinion, to which reference is hereby made, but will state such additional facts as are necessary to a consideration of the questions presented for review.
The first contention of the plaintiffs here is that, this being an action at law, the court erred in reducing the damages fixed by the jury and in directing an absolute judgment for the amount so fixed by the court, the contention being that the plaintiffs are thus deprived of the right of trial by jury. In this contention plaintiffs are undoubtedly right. See Campbell v. Sutliff, post, p. 370, 213 N. W. 374.
It is next argued that, the court having failed to set aside the verdict of the jury within sixty days, the respondents are not entitled to a review of the questions whether or not
The defendants in this case seasonably made a motion to set aside the verdict and for a new trial. The failure oi the court to, act within the time prescribed by .sec. 270.49, Stats., did not deprive the court of jurisdiction, as is argued here, but operated as a constructive denial of the motion. It would be clearly unreasonable to hold that a party who has done everything possible for him to do is deprived of a right of review in this court because of the failure of the trial court to act seasonably. The appealing defendants, having made a timely motion to set aside the judgment and for a new trial, are on appeal entitled to a review of every question which they would have been entitled to have reviewed had the court itself denied their motion.
This brings us to a consideration of the case upon its merits. The plaintiffs are husband and wife and were at the time of the trial about sixty-four years of age. They were natives of Poland and came to this country in 1885. Mrs. Borowicz could not read nor write nor understand English and testified through an interpreter. Mr. Borowicz was able to speak English, had worked in Milwaukee for a period of about eight years as a common laborer, and in the nineties removed to Brown county, where he purchased a small farm. He bought and sold several farms, and finally in 1919 purchased the farm in question for a cash consideration of $20,500. The farm appears to have been a good, improved farm, and the plaintiff Borowicz claims that he was offered $22,000 in cash for the property just before the .trade. The farm consists' of 163 acres with farm buildings, the usual farm equipment including machinery and stock. The personal property was mortgaged for $1,800 and was worth an amount considerably in excess of that. Borowicz
This in bare outline is a history of the transaction. The case was submitted to the jury upon a special ■ verdict and the jury found that the defendants Scheuer & Tiegs, Inc., A. C. Hamann, and James McKenna conspired to defraud the plaintiff. The jury further found that Scheuer & Tiegs, Inc., A. C. Hamann, and James McKenna falsely represented that the Milwaukee property was worth $33,000; that the interior of the building was all in good condition; that it was income-producing property which would yield plaintiff over and above,expenses $100 a month to live on; that such representations were made for the purpose of inducing plaintiffs to make the exchange, and that the representations so made were false. Ten jurors were of the view that under the circumstances the plaintiff ought to have relied upon the representations, found the reasonable market value of the plaintiff’s farm at $21,000, and the plaintiff’s personal property $4,000; the reasonable market value of the Milwaukee property in June, 1921, $17,000; and that if the Milwaukee property had been as represented its value would have been
There is not the slightest evidence in this case to sustain the finding of the jury that the defendants Hamann, Scheuer & Tiegs, Inc., and the defendant James McKenna ever entered into a conspiracy or ever conspired to defraud the plaintiffs. There was no concert of action. It is not claimed that there was any express understanding. There was no division of proceeds or any other indicia of a fraudulent conspiracy. The finding as to conspiracy should have been set aside upon any possible theory of the case. The remaining findings of the jury are quite clearly colored by, if not the necessary result of, the finding of conspiracy, so that in any event the judgment in this case must be reversed. While conspiracy may be established by inference and it most frequently cannot be proved by direct evidence, there must be some basis upon which a finding to that effect may rest. It stands undisputed in the evidence that Borozmcz employed Fournier as his agent, that Fournier then brought McKenna into the transaction, that Meacham was an associate of the defendants Frank Dul'ik and James McKenna, and that the defendant Dulik was employed by McKenna and his asso-' ciate to procure the signature of Mrs. Borozmcz to the contract prepared by Scheuer. There is not a scintilla of evidence that there was any communication between plaintiff and Scheuer after plaintiff left Scheuer’s office with the understanding that plaintiff was to return and procure the wife’s signature to the contract prepared by Scheuer until Fournier telephoned -Scheuer that Mrs. Borozmcz had signed the contract. In the meantime Borozmcz had repented of the deal, had refused to deliver the contract, and had torn up the first copy of the contract signed by his wife. To say that he thereafter relied upon any statement made by Scheuer & Tiegs is to ignore the necessary implication which must be drawn
(2d) It is further claimed that the property was represented to him as being in good condition. There is nothing to indicate that it was not in such condition as property of that class is ordinarily found. A subsequent purchaser spent
Upon the question of value we shall not attempt to reconcile the evidence. The trial court was of the opinion that under any view of the evidence the damages could not exceed $4,000. It was quite apparent that Borowicz exchanged a farm which was then of diminishing value for a city property the value of which was increasing. He was shrewd enough to foresee in 1921 the conditions which have since obtained. In addition to that he made no complaint or objection to the transaction for nearly two years, this suit having been begun in April, 1923. Within a few months after he acquired the Milwaukee property Borowicz exchanged it for other property, and from the complaint in that action it appears that he must have investigated, and at that time every material fact that was afterward discovered with reference to the Milwaukee property must have been brought to his knowledge. Yet he made no complaint to any one for over a year and three months — a very significant circumstance taken in connection with the other facts and circumstances surrounding the transaction. The uncontradicted evidence in the case shows that Borowicz did not rely upon the representations made to him by the appealing defendants, and he cannot for that reason recover in this action. Whatever injury the plaintiffs have sustained is not by reason of any fraudulent conduct on the part of the appealing defendants, but by reason of the fraud and misconduct of agents of their own choosing, who take no appeal in this case from the judgment rendered against them.
By the Court. — That part of the judgment appealed from is reversed, and cause remanded with directions to dismiss the complaint as to the defendants A. C. Hamann, Scheuer & Tiegs, Inc,, and Joseph F, Scheuer.