82 Wis. 30 | Wis. | 1892
The plaintiff purchased of the defendant lots 13 and 14, in block 16, in Grlidden & Lockwood’s addition, in the Eighteenth ward of the city of Milwaukee, for $2,600. The testimony on behalf of the plaintiff tends to show that the plaintiff, being ignorant of the extent and boundary of said lots, a few days previous to such purchase went with the defendant to view said property, and when on the ground the defendant represented that a certain fence, which inclosed said lots together with a part of the adjoining lots 6 and 7 on the east, was the true boundary of said lots 13 and 14, and that he owned the whole thereof; and the plaintiff at the time made a diagram of the tract embraced within said fence, on a card, in the presence of the defendant, and marked the dimensions thereof on said card, in. figures given him by the defendant at the time, as 84’ feet on the east line, 148 feet on the south line, and 127 feet on the north side; and the plaintiff relied on such representations as being true, and as an inducement to him to make such purchase. The lots 13 and 14 make a triangular tract of land, with the east line due north and south, and the south line east and west, with a right ainglfe at the southeast corner, the north line 122J feet, the east line 90 feet, and the south line 101i feet. It appears that the additional tract, as a part of lots 6 and 7 on the east, inclosed with lots 13 and 14, was not .owned by the defendant. The defendant, as a witness, denied that he made any such representation, and denied that he knew the plaintiff made any such diagram on a card, and denied that he gave the plaintiff any figures as dimensions of said tract. The testimony on behalf of the defendant tended to prove that afterwards, and before the purchase, he, the defendant, showed the plaintiff the city map and the Dupre map, and pointed out to him thereon said lots 13 and 14, and showed him
The special verdict of the jury is, in substance, as follows: (1) that-the defendant made the representations.; (2) that they were material and untrue and that the plaintiff was misled thereby; (3) that the plaintiff relied upon said representations as to the boundary in making such purchase, and that they were the inducement to the plaintiff in making such purchase; (4) that the defendant made said representations falsely and fraudulently; (5) that the plaintiff, prior to the purchase on the 5th day of February, 1889, did not have the present means in his power or possession of ascertaining the true boundary ; (6) that the plaintiff used due and proper caution and diligence in endeavoring to ascertain the true boundary; (7) that on the day of the purchase the value of that part of lots 6 and 7 inclosed by the ‘fence with lots 13 and 14, when taken in connection with lots 13 and 14, was $425; (8) that the value of that
The contentions of the learned counsel of the appellant will be disposed of in their order.
1. The demurrer ore terms was properly overruled. The allegation in the complaint that the plaintiff purchased lots 13 and 14 is not inconsistent with the statement that he bought also a part of lots 6 and 7, represented by the defendant as being within lots 13 and 14 and a part thereof. He bought, and supposed he was buying, all the land embraced within and inclosed by the fence as lots 13 and 14. The objection is technical and unfair. The law appropriate to this point, as stated by the learned counsel of the re-' spondent, is correct and elementary, that, “ where a vendor undertakes to point out to the purchaser the boundaries of the land, he is under obligation to point them out correctly, and has no right to make a mistake, except upon the penalty of responding in damages.” Bird v. Kleiner, 41 Wis. 134; Davis v. Nuzum, 12 Wis. 439.
. 2. The verdict appears to be supported by the evidence. The jury must have found that the testimony of the plaintiff was true, and on the strength of it they found that the plaintiff did not have in his power'or possession the means of ascertaining the' true boundary of the lots. A very strong circumstance, stated by the plaintiff to corroborate his testimony that the defendant represented the fence to be the true boundary, is that the plaintiff at the time considered the size and extent of the ground so inclosed, with a view of turning the buildings thereon around and making an addition thereto, and that the whole space included in the parts of lots 6 and 7 so inclosed with lots 13 and 14 was necessary for such purpose, and that they would extend nearly to the corner thereof. If this is true, and it is presumed the jury believed it to be true, the plaintiff
It seems to be admitted that the plaintiff had in his possession an abstract with the plat of these lots on it. If he had observed it, he would have found that the southeast corner was a right 'angle, and that the east line was due north and south, while the tract inclosed by .the fence was an acute angle at the southeast corner; and the east line was northwest and southeast to some extent, and not square with the map. It may be that the plaintiff did not observe that the tract inclosed by the fence was not a right angle at the southeast corner, or that the east line was not exactly north and south. It might have been sufiBcient for him to know that there was room enough for the readjustment of the buildings as he wished, and he did not observe the form of the tract inclosed. He was only concerned with the
3. The court allowed the plaintiff’s counsel to ask him, as a witness, the following questions: “Did you take into consideration the size of the property as shown by the fence?” “Did you believe what Heller said as to the property being inclosed by the fence?” “ Was there anything else that induced you,— was the size of the lot taken into consideration by you? ” It is difficult to see how that evidence could have been elicited by indirect questions. The questions call for mental operations, like “ Did you intend?” “ Were you angry? ” “ Did you believe?” etc.,— which could hardly have been arrived at without a form of question that might, to some extent, suggest the answer. The allowance, of these leading questions would not be error, unless it appeared to have been an abuse of discretion, and it does not so appear. Coggswell v. Davis, 65 Wis. 191; McPherson v. Rockwell, 37 Wis. 159; Barton v. Kane, 17 Wis. 37. The same facts might have been reasonably inferred from the testimony of the witness in giving an account of what took place-on the lots when the representation about the fence was made.
4. The defendant was asked, as a witness, what his business was before he went into the real-estate business. This was either immaterial or went to the credibility of the witness. The jury cannot know too much of a witness to properly weigh his testimony. It was not error.
5. The court refused to allow the witness West to testify, at what price the plaintiff offered to sell the property. This was on the question of its value. It was over a year after the sale. This raised a new issue to be tried, involving many other questions, such as the change in value, the reason of the offer, etc., and; clearly improper.
6. The court instructed the jury that “ the plaintiff is
Y. The value of that part of lots 6 and Y, as fixed by the jury, is sustained by the testimony of several witnesses, and the damages found are not excessive.
By the Court. — The judgment of the superior court is affirmed.
Upon a motion for a rehearing there was a brief for the appellant by Williams cfo Friend.
The motion was denied April 12,1892.