Gormely v. Gymnastic Ass'n of the South Side of Milwaukee

55 Wis. 350 | Wis. | 1882

Tayloe, J.

We think, under the rules established by, this court in Supervisors of Kewaunee County v. Decker, 30 Wis., 624, we must hold this complaint was intended to set out a cause of action in tort, for false and fraudulent representations made on the part of the respondent, by reason of which the appellant was induced to make the agreement to lease the respondent’s hall and sell liquors, tobacco, and cigars therein without a license to do so, by reason of which he suffered damages in the manner stated in the complaint. It cannot fairly be construed to set out a cause of action simply on contract. If the appellant relied on the mere promise of the respondent that it would, in case he leased the hall, do all things necessary to authorize the appellant to retail liquor, tobacco, and cigars at the bar in the hall during the time he leased the same, upon the breach of such contract in not furnishing him the license to do so, he would not be at liberty to go on and violate the laws of the state and of the United States by selling without a license and then charge the respondent with the damages which resulted to him from such violation of law. His damages for such a breach of contract. if there was or could be any, would either b e the cost of the license which it would be his duty to obtain for himself if he desired to retail such liquors, tobacco, and cigars, or to abstain from selling them and charge the respondent with damage for the loss of profits which he would have made had the respondent furnished the proper license to do the business.

As an action of tort it seems to us very clear the complaint is insufficient. The substance of the charges of fraud and deceit are that the respondent said he had the right and privilege of a retail liquor dealer, etc., to sell such liquors, etc., at the bar in said hall, and that if appellant leased the hall he would have the right to retail such liquors, etc., at the bar in the said hall during his occupancy thereof, without himself procuring a license from, the government of the United States, or of this state. The false charge is simply that the respondent said, “ If you lease the hall you Can retail liquors, etc., at the bar,” under and by virtue of a license or licenses which the respondent held from the United States and from the city of Milwaukee. The fact, therefore, whether the respondent had a license from the United States, or from the city of Milwaukee, or from both, was entirely immaterial, as such fact would not have given the appellant a right to retail liquor, etc., at the bar of the hall in case he leased the same. See E. S. of U. S., § 3232. The appellant was just as much bound to know that the license of the respondent would not protect him in the sale of liquors, etc., as the respondent was. It was a. question of law whether such licenses would protect the appellant, and 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 the parties. This rule of law is too well settled to need discussion. Cooley on Torts, 485, 486, and cases cited in note; 3 Wait’s Act. & Def., 434, § 5, and cases cited.

The allegation that the representation as a representation of fact was false because the respondent did not in fact have-a license to retail liquors, etc., is, as we have seen, wholly immaterial, for the reason, that if it had been true it would not have protected the appellant from the consequence which followed.

By the Oowrt.— The order of the circuit court is affirmed, and the cause remanded for further proceedings according to law.