Legler v. Tyler

184 Wis. 238 | Wis. | 1924

Eschweiler, J.

Giving the most favorable construction that we can to this complaint, we nevertheless fail to find a cause of action therein stated.

No fraud or collusion between Jacobs, with whom the plaintiff made the exchange of property, and the defendants is alleged or suggested. The delay in plaintiff's obtaining immediate possession of the property of Jacobs for which she exchanged hers is not chargéable to defendants.

That defendants would obtain in the future a purchaser of the property acquired by plaintiff in the exchange was not an assertion upon which plaintiff can predicate an action for fraud. Miley v. Heaney, 168 Wis. 58, 73, 169 N. W. 64; Davis v. Reynolds, 107 Me. 61, 77 Atl. 409; Hazlett v. Wilkin, 42 Okla. 20, 140 Pac. 410.

Plaintiff also asserts that the situation between the parties was such as to create a fiduciary relationship whereby the opinions or promises by the defendants as to the possible future sale or exchange of plaintiff’s newly-acquired property made such opinions and promises in the nature of facts which, when relied upon by plaintiff, came within the field of actionable fraudulent representations. We cannot accept such view.

Stress is laid by plaintiff upon the .proposition that the allegation that the defendants represented to plaintiff “that they had a letter in their office authorizing them to buy it for a brother-in-law in Texas, and that they would get the plaintiff her money next week,” is a representation as to a present existing fact, namely, that they then had a valid and binding written agreement or offer to buy, and if false and relied upon is sufficient to support a cause of action for fraud.

We deem such, however, and especially when read in connection with the rest of the complaint, as entirely too unsubstantial, coupled as it is with the assertion as to the future, to come within the logic of the theory upon which this class of cases is based or within the letter or principle of any of the decisions on this subject. The demurrer, therefore, should have been sustained.

By the Court. — Order reversed.