Hansen v. Allen, 117 Wis. 61

Hansen v. Allen

117 Wis. 61 | Wis. | 1903

Cassoday, C. J.

It is claimed that tbe complaint does not state facts sufficient to constitute a cause of action, and that at the close of tbe testimony the court should have granted a nonsuit or dismissed tbe action. Tbe facts found by tbe court are to tbe effect stated. According to such findings, tbe plaintiff was induced by tbe false representations of tbe appellant and bis agent to make tbe contract mentioned, believing that it described other lands, of very much different condition and quality, wbicb bad been shown to him by tbe plaintiff’s authorized agent.

1. Tbe contention is that there was no sufficient offer on tbe part of tbe plaintiff to return to tbe appellant tbe title be had received from tbe appellant before tbe commencement of this action. It appears that in February, 1900, and as *65soon as the plaintiff learned of snob misdescription, be immediately notified sncb authorized agent of the appellant that be desired to rescind the contract, and demanded back the money be bad paid to the appellant; and thereupon and on March 6, 1900, the plaintiff sent a letter to the appellant — personally — at St. Paul, demanding of the appellant the repayment of the money so paid by him, and therein offering to relinquish all claim upon the land to the appellant. True, that letter so sent the day before the commencement of this action was not received by the appellant until the day after the commencement of the action. On the trial the plaintiff produced and tendered to the appellant a quitclaim deed of the land described in the contract, as offered in the complaint, which the latter refused to acbept, and the same was deposited with the clerk of the court for the use of the appellant. The appellant in his answer denied such misrepresentations, and refused to repay the money; and he admitted under oath that he would not have repaid the money, even if a demand had been made upon him personally before the commencement of the action. It is manifest from the conduct and admission of the appellant, stated, that he would have rejected a deed had it been tendered at the time the plaintiff expressed a desire to rescind the contract and demanded back the money he had paid. It is to be observed that this is an action for rescission on the ground of fraud. It has been held that: “It is not necessary to the maintenance of a bill in equity for the rescission of a contract on the ground of fraud that the party complaining should have first restored or offered to restore what he received under the contract.” Martin v. Martin, 35 Ala. 560; Perry v. Boyd, 126 Ala. 162, 169, 28 South. 2711, and cases there cited. To the same effect: Kiefer v. Rogers, 19 Minn. 32. See 9 Am. & Eng. Ency. of Law (2d ed.) 201. These cases are in harmony with the rulings of this court. Hyland v. Roe, 111 Wis. 361, 370, 87 N. W. 252, and cases there cited; Lockwood v. Allen, 113 Wis. 474, 89 N. W. 492. *66At most, tbe want of sucb prior- offer could only affect tbe question of costs. Id. Tbis court bas also beld tbat: “Where tbe vendor repudiates tbe alleged sale, and it is apparent from tbe facts and circumstances tbat tbe money would be refused, tender of tbe purchase money before bringing a bill for specific performance would seem to be unnecessary.” Wright v. Young, 6 Wis. 127. So it bas been beld tbat: “Where tbe vendor in a land contract is able, ready, and willing at tbe proper time to convey tbe land, and offers to do so, but tbe vendee absolutely refuses to receive a deed or pay any part of tbe purchase money as agreed, tbe vendor may maintain an action on tbe contract, without having actually made and tendered a deed.” McWilliams v. Brookens, 39 Wis. 334. To tbe same effect: First Nat. Bank v. Kickbusch, 78 Wis. 218, 47 N. W. 267. For tbe reasons stated, there was no error in allowing costs to tbe plaintiff.

2. It is claimed tbat even if tbe plaintiff was induced to make tbe contract by sucb fraud, yet there is a failure on tbe part of tbe plaintiff to show tbat be was actually damaged by reason of sucb fraud. It is enough to say tbat tbe plaintiff was entitled to have tbe particular piece of timbered land with a stream of water upon it which bad been pointed out to him, and for which be actually contracted, instead of a different piece of land situated at some other place.

3. Tbe court having set aside tbe contract for fraud, there was no error in allowing interest to tbe plaintiff on tbe payments made by him from tbe time of sucb payments respectively. Potter v. Taggart, 59 Wis. 1, 16 N. W. 553, 632; McKinnon v. Vollmar, 75 Wis. 82, 43 N. W. 800; J. I. Case Plow Works v. Niles & S. Co. 107 Wis. 9, 17, 82 N. W. 568; 1 Sutb. Dam. (2d ed.) § 354.

4. Error is assigned because, some two or three months after tbe findings were filed and tbe judgment was entered, tbe court, on tbe bearing of an order to show cause, ordered tbat tbe complaint be and tbe same was thereby amended so *67as to conform to tbe proofs in tbe particulars therein named; and it was therein ordered that there be added to the written findings the following: “No. 12. That the plaintiff holds unincumbered all the right, title, and interest in and to the said land that he received from the defendant Allen ” on the ground that such finding so added “was actually found by the court, from the undisputed evidence received upon the trial, without objection,” but had been “inadvertently omitted” from the “written findings of fact.” The statute expressly authorized the court, in its discretion, to make such amendment “before or after judgment, in furtherance of justice and upon such terms as may be just.” Sees. 2830, 2832, Stats. 1898. The order in question required the plaintiff to pay to the appellant $5 costs. We perceive no abuse of discretion in making such order and amending the complaint and findings accordingly. We find no reversible error in the record.

By the Court. — The judgment of the circuit court is affirmed.