146 Wis. 130 | Wis. | 1911
This is an action brought to recover damages for fraud in tbe sale of a lease of oil-bearing lands in Oklahoma. Misrepresentations alleged related to tbe number and capacity of oil wells on tbe premises, market price for oil, productivity, and value in general, and it is also claimed that tbe defendants, under pretense of going into tbe adventure on a pro rata basis with plaintiff and others, received a secret rebate of $1,000 each. Error.is assigned because tbe court directed a verdict for defendants and on account of rulings on evidence.
We may drop out of consideration tbe alleged misrepresentations as to productivity and value because such representations were largely matters of opinion, and plaintiff examined tbe property for himself and evidently did not rely
Where several persons by common agreement join as buyers of property, each to acquire a fractional undivided interest therein proportionate to the amount paid in by him, they owe to one another in such enterprise the duty of good faith and full and fair disclosure, and neither one can by secret commission or rebate obtain any advantage over his co-adventurers. The consent of each is usually given and the money of each obtained upon the understanding and belief that the funds, interest, and aid of each is and will be given to the enterprise within the bounds agreed upon. Eor one by secret
But the evidence in the instant case, while tending to show that plaintiff was by this deceit induced to pay more than his proper share of the real purchase price, still falls short of showing or tending to show that plaintiff was induced by this deceit to enlist in the enterprise in the first place. Other inducements prompted him to become one of the joint purchasers and to agree to pay not a fixed sum but his pro rata share ■of the purchase price, whatever within a certain maximum that price might be. The real actionable deceit here did not ■occur until dong after plaintiff had agreed to become a party to the purchase, and when it occurred it injured the plaintiff by requiring him to pay at the rate of $8,000 instead of $6,000 for the first payment on the property. He should have paid $375; he was induced by this deceit to pay $500, and the measure of his damages is the sum lost, namely, $125. This the evidence tends to show, and the'questions involving plaintiff’s right to recover this should have been submitted to the jury. The only obstacle to plaintiff’s recovery of this sum which we find in the testimony is., some evidence on the part
We find no support in law for the ruling of the court below that one of several joint purchasers may secretly withhold his share of payment, yet acquire an interest in the purchased property and commit no fraud' by so doing, because his representation that he will pay it is promissory and his representation that he'has paid it is made after plaintiff has parted with his money. The deceit in such case consists of the misrepresentation that the property is costing the buyers a given sum when in fact it is not, and that the amount plaintiff is required to pay to put him on a footing of equality or proportion with the other shareholders is by this covin fraudulently increased.
By the Gowk. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.