The only facts which need be- stated are such as appeared by the testimony on behalf of the plaintiff, and they are briefly as follows: The defendant purchased of one Joshua Selby the north half of a quarter section of land according to government survey, and agreed to pay therefor $1,200 in different payments thereafter (but the whole of which might be paid at any time before due), and on such payment he was to receive a deed, and he-immediately went into possession. Afterwards the plaintiff called upon the defendant with a view of purchasing the said land, and asked him where the lines of said tract were, and the defendant pointed to the fences -which were in view on what appeared to be the north and west lines of said tract, and represented to her that said fences were on said lines. The plaintiff was ignorant of the true lines, and never heard that they were at all in dispute. Belying upon said representation the plaintiff then and there purchased said land of the defendant in consideration of her assuming the payment of said $1,200 to said Selby and receiving an assignment of said contract, and of the payment of other $1,200 in addition thereto to the defendant, which latter sum -was then and there paid, and said contract was duly assigned to her and she went into possession and afterwards paid to the said Selby what was due on said contract, and received from him a deed of said premises. About two years after-wards the plaintiff first heard that there was some question about the said fences being on the true lines, and some
The circuit court, at the conclusion of the testimony, submitted to the jury the question of damages, and they found for the plaintiff the sum of $100, but the court reserved the question of the plaintiff’s legal right to recover on the above facts, and finally, on motion of the defendant, set aside said verdict and rendered judgment in his favor for costs. What were the reasons for this action of the court, and for deciding against the plaintiff’s right of recovery, we are not advised by the record, and can only suppose what thejr may have been, from the contention of the learned counsel of the respondent in his brief on this appeal. That contention is, that the defendant is not answerable in damages, provided he believed the representation to be true and had no
This contention of the learned counsel is not the law. This question is well settled in this state in Bird v. Kleiner, 41 Wis. 134, and in Cotzhausen v. Simon, 47 Wis. 103. The first of the above cases is almost precisely in point. The parties to the purchase were on the land and the defendant 'pointed out the corners and the boundaries as the true lines and they were found not to be so, to the damage of the plaintiff, and the plaintiff recovered. One of the errors assigned for the reversal of the judgment was “ that the court refused to instruct the jury that the plaintiff was not entitled to a verdict unless he should establish to their satisfaction the fact that a fraud had been intentionally perpetrated upon him by the defendant.” The judgment was affirmed, the present chief justice stating the law as follows : “ Where a vendor undertakes to point out to the purchaser the boundaries of his land, he is under obligation to point them out correctly, and has no right to make a mistake, except .under the penalty of responding in damages,” citing Bennett v. Judson, 21 N. Y. 238. The counsel of the respondent in that case cited numerous authorities, and the counsel of the appellant in this case cites many outside of this state in support of this doctrine, to which reference may be had. In the other of the above case's, it is said in the opinion: “ If the representations were material and false, and the defendant knew or had the means of knowing or ought to have known that they were untrue, and the plaintiff did not know or have the present means of knowing that they were false, and relied upon them as being true, and
The defendant testified, that he said to the plaintiff “these are the lines I got from Selby.” But on cross-examination he testified that that was the impression he tried to give the plaintiff, but that he did not know that he worded it that way or not.” The learned judge stated to the counsel that “ the only question in controversy is the amount of damages; the only question in which there is any conflict of testimony.” I presume, therefore, that the court found that the plaintiff had testified correctly as to what the representation was, or that it was not disputed. This then being established as a fact, the court should have rendered judgment for the plaintiff on the undisputed evidence, and there would seem to be no good reason for a new trial upon this question or the amount of the damages. But we will leave it optional with the defendant to consent to a judgment in favor of the plaintiff of $100 and costs on the verdict of the jury, or have a new trial ordered.
This action was brought by the appellant, against the respondent, for the purpose of recovering damages for an alleged false statement made by the defendant to the plaintiff during a negotiation between the parties as to the sale of a land contract held by the defendant upon a certain eighty acres of land. The sale was perfected by an assignment of the contract held by the defendant to the plaintiff, and she entered into possession of the lands described in the contract; and there is no claim that she has not obtained the land described in the contract. It is claimed by the plaintiff that the defendant made a false statement concerning the boundaries of the land he proposed to sell to her.
The material allegations in the complaint are as follows: “ The plaintiff further alleges and shows to the court., that the defendant did, as and for an inducement and to procure the assignment of said contract and the payment of the said $1$00 to the defendant, falsely represented to this plaintiff” that certain fences then in existence were the west and north lines of said eighty acres, and that they were pointed out to her by the defendant as the true lines; and then alleges that said fences were not on the true lines of the eighty acres according to the government survey, and further alleges that the fence pointed out as the west line was fifteen rods west of the true line, and the north fence was about twenty-one rods north of the true north line. And further alleges that the twenty-one rods of land north of the real line and fifteen rods west of the real line were of great value, and much more valuable than the lands she obtained in lieu thereof on the east and south lines of .said eighty acres. The complaint also alleges that she relied upon the defendant’s statements concerning the lines.
The plaintiff herself testified as follows, in regard to the alleged false representations: “I was looking for a farm to buy and I drove up there in a sleigh, my husband, my father,
It appeal’s to me that a simple representation as to the boundaries of a governmental subdivision of a section which the party is about to sell, made to the purchaser, when made in good faith from a knowledge of facts which he supposed to exist, when not purposely made as an inducement to the purchaser to make the purchase, furnishes no ground of action in favor of the purchaser, if such representation turns out to be untrue.
The attorneys for the plaintiff in the case recognized the necessity of alleging, and did allege in the complaint, that the untrue representation was made for the purpose of inducing the plaintiff to purchase the land, as well as that she was influenced to purchase by reason of such representation. This rule is clearly stated by the court in the case of Litchfield v. Hutchinson, 117 Mass. 195-197. In that case the court sa}7: “ To sustain such an action it is necessary for the plaintiff to prove that the defendant made false representations which were material, with a view to induce the 'purchase. But it is not always necessary to prove that the defendant knew the facts stated by him to be false. If he states, as of his own knowledge, material facts susceptible of knowledge which are false, it is a fraud which renders him liable to the party who relies and acts upon the statement as true, and it is no defense that he believed the facts to be true. The falsity
Upon the evidence in this case, it seems to me there is nothing which tends to prove that the statement made as to the fences was made for the purpose of inducing the plaintiff to purchase his contract for the land. The evidence on the part of the plaintiff clearly shows that the defendant was not seeking to sell his interest in the land to the plaintiff, or that he ever at any time had requested her to purchase it; she seeks him out for the purpose of purchasing; she simply asks him if he will sell, and he says he will; she asks the price, and he gives it; she then in a casual way asks him where the lines are, and he points them out as he believes they are, and she says she will buy. She had made no examination so as to know that the lines as pointed out would be more beneficial to her than if they were moved farther south and farther east, and the defendant could not know from what she said or did that she deemed the exact location of the lines as material, but if she did, he certainly did not make his statement in regard to the location of the lines with a view to induce her to buy the land. He pointed out the fences as the lines in answer to her question, and not for the purpose of making a trade. The law does not presume a fraud, but it must be proved either by direct or circumstantial evidence, and I think the evidence in this case fails entirely to establish any fraudulent intent on the part of the defendant. The defendant
I am also inclined to fhinlt that this case comes within the other rule laid down by the courts, viz., that where a representation is made in order to induce a trade, if the party does nob know it is false, or if the circumstances are not such that he ought to know whether it be false or not, the subject of the representation must be of such a nature that the person making it could readily have personal and exact knowledge upon the subject. If the matter be of a nature that the party can only form an opinion upon the subject and not obtain exact personal knowledge, his representation, if made in good faith, will be deemed only an expression of opinion and not the assertion of a fact within his personal knowledge. The matter of the exact boundaries of a governmental subdivision of land is usually a matter of great doubt, and is a matter upon which men do not usually have exact knowledge, and any representation in regard to it when made in good faith should be deemed rather the expression of an opinion than as a fraudulent representation of a matter clearly within his personal knowledge. There may be and are cases where a representation as to boundaries would be held fraudulent when made to induce a trade, but in such cases the facts have been such as to show that there was a want of good faith in making the representation. The evidence in this case does not show any such want of good faith, and the representation must, as a matter of law, be considered as the expression of an opinion rather than of a fact.
I think the case comes within the rule stated by the court in the cases of Page v. Bent, 2 Met. 371, 376, and Tucker v. White, 125 Mass. 344, 347. And I know of no decision of
I think the judgment of the circuit court should be affirmed.
By the Oourt.— The judgment of the circuit court is reversed, and the cause remanded' either for judgment on the verdict in favor of the plaintiff or for a new trial at the option of the defendant.