Farr v. Peterson
64 N.W. 863
Wis.
1895
Check Treatment
Pinney, J.

1. There is no preponderance of evidence against the finding of the court upon the issue on the equitable cause of action set out in the complaint. It would be of no service to set out the substance of the evidence, or to enter upon аny discussion of it. That part of the judgment which denies the plaintiff any equitable relief must therefore be affirmed.

2. Whether the defendant, in the еxercise of ordinary care and prudence, as an ordinarily intelligent man, under the circumstances shown in this case, ought to have relied upon the statements and representations made to him, and to have accepted them as true, without doing more than the testimony in this case satisfied the jury that he did do to ascertain the truth or falsity of said statements and representations, was left to thе jury, upon the evidence, under instructions apparently fair and correct. For the want of exception on the part of thе defendant to the charge, we cannot review it; and for the reason that no motion was made to set aside the speciаl verdict on the eighth finding, we cannot say that the eighth finding is not supported by competent evidence. The only question then is whether, upon the verdict tallen as a whole, judgment should have been given for the plaintiff or for the defendant The defendant rests his right entirely upon the special verdict, and does not seek to question it in any respect. It appears from the uncontradicted evidence that the defendant, with his agent, visited the farm in question immediately before he concluded the trade, and had an opportunity to exаmine it, and they availed themselves of it, to some extent at least. Admitting that the representations stated in the special verdict were false and fraudulent, and were made with the intent that defendant should rely upon them; that he did not know the value of the lands, and did so rely uрon them, and was thereby induced to purchase the farm; and that he was damaged by such false and fraudulent representations,— *187?the question presented is whether his consequent loss ‍​​‌‌​​‌‌‌​​​‌​‌​​‌​​‌​‌​​‌‌​‌​‌​‌‌​​‌​‌‌‌‌​​​​‌​‍is not 'the result of his own negligence and folly.

In Slaughter’s Adm'r v. Gerson, 13 Wall. 383, the rule is stated to be that the representations, to entitle a party to ¡relief, “ must be representations relating to a matter as to which the complaining party did not havе at hand the means of knowledge. Where means of knowledge are at hand and equally available to both parties, and the subject of the purchase is equally open to their inspection, if the purchaser does not avail himself of those means and opportunities he will not be heard to say, in impeachment of the contract <of sale, that he was drawn into it by the vendor’s misreprеsentations.” The same doctrine is laid down in Mamlock v. Fairbanks, 46 Wis. 415, where it is said that “ the present ■means of knowledge concerning the subject matter of the ‍​​‌‌​​‌‌‌​​​‌​‌​​‌​​‌​‌​​‌‌​‌​‌​‌‌​​‌​‌‌‌‌​​​​‌​‍representations of the party complaining, and whether he knew or might home known the truth, aside from such representations, are always material questions in such a case, and •cannot be ignorеd where there is any proper evidence upon which they can be raised;” that the rule in cases of fraud •by false representations is not to be extended to the protection of those who, having the means in their own hands, ¡neglect to protect themselves; that the rule as to fraudulent representations in respect to the sale of personal property generally is equаlly applicable to the sale of real estate; and “that if the defects in the subject matter of sale are patent, оr such as might or should be discerned by the exercise of ordinary vigilance, and the buyer has the opportunity of inspecting it, the law does not require the seller to aid and assist the observation of the purchaser.” Kerr, Fraud & M. 101; Brown v. Leach, 107 Mass. 368.

The law requires men, in their dealing with each othеr, .to exercise proper vigilance and apply their attention to •those particulars which may be supposed to be within the reach of their observation and. judgment, and not to close *188their eyes to the means of information accessible to thеm; bat the seller must not use any art or practice any artifice to conceal defects, or make any representations ‍​​‌‌​​‌‌‌​​​‌​‌​​‌​​‌​‌​​‌‌​‌​‌​‌‌​​‌​‌‌‌‌​​​​‌​‍or do any act to throw the purchaser off his guard, or to divert his eye, or to prevent his use of any present means of informаtion. Kerr, Fraud & M. 96, 98. Accordingly, a mere assertion by the vendor as to the value of the property offered by him for sale, where the рroperty is seen and examined by the purchaser, although untrue and known by him to be so, will not render him responsible to the purchaser for damages. There must have been want of knowledge or the present means of knowledge, and not mere want of judgment on the part of the latter, and a purchase in entire reliance upon the representations made, or there must have been somе .artifice employed to prevent inquiry or the, obtaining of knowledge by the purchaser. Mosher v. Post, 89 Wis. 602; Chrysler v. Canaday, 90 N. Y. 272. The fraud or mistake must have been of such a nature that the purchaser could not, with reasonable diligence, acquire a knowledge of it when put on inquiry. Prince v. Overholser, 75 Wis. 646, 650; Brown v. Leach, 107 Mass. 368.

Aside from the reprеsentation as to the value of the farm,, the ‍​​‌‌​​‌‌‌​​​‌​‌​​‌​​‌​‌​​‌‌​‌​‌​‌‌​​‌​‌‌‌‌​​​​‌​‍only other fraudulent representation found by the jury was “ as to the amount of hay ” the plаce produced. The contract was made at a time so near the usual period of cutting hay that the jury may have been аble to conclude from the evidence that the defendant might have fairly judged of its truthfulness by an inspection of the crop then growing. But, bе this as it may, their answer to the eighth question is nevertheless conclusive in this respect, as well as in respect to the representations as to value, that, under the circumstances, shown in the case, the defendant ought not to have relied upon these representations as true without doing more than he was shown to have done to ascertain their truth or falsity. This was a question for the jury, under proper instructions *189from the court; and for reasons founded upon the state of the record, already stated, the defendant cannot now question this finding. It is conclusive, and shows that judgment should have been given on the counterclaim in favor of the plaintiff and against the defеndant.

By the Court.— That part of the judgment denying equitable relief as prayed for in the complaint is affirmed, and that part of the judgment awarding damages, upon the •counterclaim against the plaintiff, to the defendant, ‍​​‌‌​​‌‌‌​​​‌​‌​​‌​​‌​‌​​‌‌​‌​‌​‌‌​​‌​‌‌‌‌​​​​‌​‍is reversed, and the cause is remanded with directions to render judgment on the special verdict in favor of the plaintiff and against the defendant. The appellant is to recover costs in this court.