Hartsman v. Mueller

195 Wis. 485 | Wis. | 1928

Crown hart, J.

The plaintiff and defendants entered into a contract in writing for the sale and purchase of a parcel of real estate in the city of Milwaukee. After the plaintiff had entered into the contract for the purchase of the lot in question, which was represented as “size of lot on the above described real estate is approximately sixty (60) by one hundred forty-three (143) feet,” and had paid $1,000 on the contract, he ascertained from the abstract furnished by the defendants that the lot was in fact nine feet short of the represented depth, that is, the lot was sixty by one hundred thirty-four feet, instead of sixty by one hundred forty-three feet. The plaintiff thereupon rescinded his contract and brought an action for money had and received, to recover the $1,000 down payment. The defendants claimed that there was no material misrepresentation, in view of the fact that the defendants used the term “approximately” to qualify the description, and the defendants further contend that the purchaser was bound to take notice of the size of the lot by reference to the recorded plats.

The question of what is a material variation in a description depends a good deal upon the circumstances of the particular case. Here was a lot of the value of $17,000. Each square foot would be of the approximate value of $2. The plaintiff desired to erect an apartment building upon the lot, and when he learned the true size of the lot he found that the building he had in contemplation could not be put upon it.

The owner of the premisesvis presumed to know the description and area thereof, and when he uses the term “approximately” to modify a definite description, the term should be held to mean “near to correctness,” “nearly exact;” and especially is this so where the matter is one of mathematical computation. Vaughan v. Ford, 162 Mich. 37, 127 N. W. 280, 282. We have no hesitation in holding that the variation in the size of the lot from that given in the contract is a material misrepresentation. The contract required defendants to furnish an abstract, and the plaintiff had a right to rely on the description therein until he got the abstract. As soon as the abstract disclosed the shortage, the plaintiff promptly rescinded.

We have so recently considered this matter in Wilks v. McGovern-Place Oil Co. 189 Wis. 420, 207 N. W. 692, that we do not deem it necessary to repeat what was there said. We think this case is governed by that decision.

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