Krause v. Busacker
105 Wis. 350
Wis.
1900
Check Treatment
Winslow, J.

The appellant contends: (1) That the judgment must be reversed because scienter is not found; (2) that the court erred in striking out the eighth finding of the verdict; and (3) that, in any event, the court erred in allowing *354to the plaintiff as damages the $450 expended upon the-property for improvements.

1. The claim that in an action at law to recover damages for materially false representations, by which the purchase of property is induced, the representations must be shown, to have been wilfully false, cannot be sustained. The question has been settled in this court by numerous adjudications, and it is not deemed necessary to review them.v If' the representations were material and false, and the maker thereof either knew or ought to have known that they were false, or if he made them recklessly, with no knowledge on-the subject, and the injured party relied upon them as true, without the present means of knowledge of their falsity and suffered damage thereby, then the fraud is complete. Bird v. Kleiner, 41 Wis. 134; Cotzhausen v. Simon, 47 Wis. 106; Montreal River L. Co. v. Mihills, 80 Wis. 541; Beetle v. Anderson, 98 Wis. 5.

2. The court committed no error in striking out the eighth finding of the jury. The jury had found as facts, in answer to other questions, that the representations alleged were ip fact made as inducements to the trade; that they were false; that the plaintiff relied upon them; that the plaintiff had no knowledge of the actual condition of the dam, and could not, by reason of the ice, ascertain its actual condition. Upon this state of facts the plaintiff was, as matter of law, entitled to rely and act upon the defendant’s representation. Gunther v. Ullrich, 82 Wis. 222. It was, therefore, unnecessary to submit to the jury the eighth question, which is, in its nature, a legal conclusion. ETor could the jury destroy the legal effect of the other findings by answering that question as they did. That such finding may be stricken out by the trial court is well settled. Rahr v. Manchester F. Ass. Co. 93 Wis. 355.

3?; Upon no theory, however, can it be held that the plaintiff is entitled to recover the $450 which he spent in improv*355ing the mill property before he found out the true condition of the dam. Possibly, had there been a rescission of the sale, such outlays might have been proper elements of damage; but there was no rescission. The plaintiff elected to keep the property, never attempting to rescind the sale, but bringing his action for damages, and. thus affirming the transaction. Thus it is clear that the expenditures for improvements were expenditures made upon his own property, and that he necessarily had the benefit of them. The fact that the property was afterwards sold upon foreclosure of a valid mortgage, or that the defendant bought it upon the foreclosure, cannot convert such an expenditure into an element of damage legitimately flowing from the fraud. ' The only legal damage shown by the verdict is the sum of $50, which the property was worth less than it would have been had the dam been as it was represented to be. / Judgment should have been rendered for this sum alone, v

By the Court. — -As to the sum of $450 the judgment is reversed, with costs, and as to the balance the judgment is affirmed.