176 Wis. 225 | Wis. | 1922
It has long been the settled law in this state that when a vendor undertakes to point out or state to a purchaser the boundaries or situation of the property he is selling, he is bound to' do so correctly; and when the purchaser is ignorant of the location, he has the right to rely on the positive statement of the vendor and to hold him responsible whether the false representation was intended or not. Bird v. Kleiner, 41 Wis. 134; Cotzhausen v. Simon, 47 Wis. 103, 1 N. W. 473; Gunther v. Ullrich, 82 Wis. 222, 52 N. W. 88; Castenholz v. Heller, 82 Wis. 30, 51 N. W. 432; Krause v. Busacker, 105 Wis. 350, 81 N. W. 406; Knudson v. George, 157 Wis. 520, 147 N. W. 1003.
In the present case the special verdict was agreed to by both parties. Defendants made no request for a finding whether the represéntation was recklessly made or whether the plaintiff by the exercise of ordinary care could have ascertained the true location of the lot conveyed. These were issues which the trial court deemed necessary to' be decided, and under sec. 2858m, Stats., resolved them both in defendants’ favor. The cases already cited show that the court was in error in failing to observe the rule that liability for an untrue representation of this character
As to the other issue on which the court made his special finding, we consider that the decision was not warranted by the evidence. The lots were vacant land similar in appearance, without fences or other boundary marks. On the lot pointed out to the plaintiff was the “For Sale” sign. It was settled by the finding of the jury that the untrue statement as to boundaries did not consist of a mistake as to a few inches or a few feet, but that the wrong lot was pointed out.
In the decision the trial court expressed the belief that plaintiff should have caused a survey to be made and that his failure to obtain it was negligence which should defeat a recovery. In Castenholz v. Heller, 82 Wis. 30, 51 N. W. 432, the buyer was furnished an abstract of title containing a plat of the land sold him. If he had carefully compared the plat with the description given him he would have discovered the mistake. Although the plaintiff in that case testified that he did not observe the size or boundary of the lot on the plat, the jury found that he had used ordinary care, and this court held that the finding was warranted by the facts. In the instant case the plaintiff had no source of information except the statements of the defendant and he had the right to rely on them.
In our opinion the view of the court that, under the circumstances, plaintiff should have procured a survey, is neither required by the authorities nor consonant with common usage.
The trial judge expressed the view that the damages found by the jury were excessive. In cases of false representations as to the identity of the land sold, the usual measure of damages is the difference between the value of the land pointed out and that of the land conveyed. Obviously
He had no right to remove the structures except with the consent of the real owner of the lot:
“The mere fact that the fence in question was built by the plaintiff upon lands not his own, by mistake, did not prevent its becoming a fixture to the real estate as soon as it became attached to the soil.” Kimball v. Adams, 52 Wis. 554, 556, 9 N. W. 170; Huebschmann v. McHenry, 29 Wis. 655.
No such consent was ever given until under the stress of the trial, and then was given grudgingly and with conditions plaintiff was not bound to accept.
It is only just that defendant should be charged with such damages as are the natural and proximate result of his misrepresentations. 39 Cyc. 1639; 27 Ruling Case Law, “Vendor and Purchaser,” p. 386; Lawson v. Vernon, 38 Wash. 422, 80 Pac. 559.
When the defendant learned of the mistake which he had made he manifested no concern, and cannot now complain if he is required to make compensation for plaintiff’s loss. The jury found that loss to be $720, and there was testimony on which a greater sum could have been awarded-. It is our conclusion that the plaintiff is entitled to judgment and that the finding of the trial court should be set aside.
By the Court. — Judgment reversed, and cause remanded with direction that judgment be entered for the plaintiff on the verdict.