126 Wis. 50 | Wis. | 1905
There is no contradiction of tbe plaintiff’s evidence that be was induced to part with tbe borse in question to August Miller upon tbe representation that tbe latter owned
1. Was the representation by August Miller such that'the plaintiff might reasonably have relied upon it and been thereby induced to part with his horse, so that, upon discovering its falsity, he had a right to rescind and revest himself with the title ? Upon this question we think the conclusion of the-court was right. We are aware of the numerous decisions to the effect- that silence, or in some cases even express misrepresentation as to facts appearing by public record, cannot be-considered sufficient to constitute legal fraud, for the reason that under the circumstances in such various cases the record information of their falsity was open and accessible and would have come to the notice of one in the ordinary course of doing such business. The degree of observation required to-be observed and the knowledge imputed to one buying goods, from another is discussed at considerable length in Kaiser v. Nummerdor, 120 Wis. 234, 97 N. W. 932. That the rule that statements or representations by a party, whose falsity might be discovered by careful inspection of public records, can never be legal fraud, is not universal, is shown by several decisions in this state (Booth v. Ryan, 31 Wis. 45; Zunker v. Kuehn, 113 Wis. 421, 88 N. W. 605; Lockwood v. Allen, 113 Wis. 474, 89 N. W. 492; Hurlbert v. T. D. Kellogg L. & Mfg. Co. 115 Wis. 225, 91 N. W. 673); and the test must be, as stated in Kaiser v. Nummerdor, whether one in the exercise of that measure of observation customarily accompanying such transactions would have examined the record and discovered the falsity of the statements before relying oa
2. The second legal obstacle to the conclusion of the trial court, urged by appellant, is that the present action was laid in cepitj alleging an unlawful taking as well as unlawful detention, but that the proof discloses no unlawful taking, and hence the action as laid is not sustained. . We agree with him as to the effect of the evidence. There is nothing to show that the defendant came into the custody of this horse unlawfully, but merely that he refused to deliver it up when the plaintiff demanded it. Appellant supports his contention upon the law by citation of Ronge v. Dawson, 9 Wis. 246, and Child v. Child, 13 Wis. 18, to which might be added Oleson v. Merill, 20 Wis. 462. These cases, however, all dealt with the ancient action of replevin, originally an action -in tort based upon the trespass involved in the wrongful taking, ■which, however, had been enlarged at common law so as to include replevin in debinet, where the plaintiff waived the trespass and merely rested upon an unlawful detention. Much technicality and learning was expended upon this distinction, and it had been held, as stated in cases above cited, that, where the plaintiff framed his action upon the wrongful taking, he could not then recover possession merely for the wrongful detention. This subject, however, has become obsolete since the Code, which entirely eliminated the ancient common-law action of replevin as the means of regaining possession of chat
By the Gourt. — Judgment affirmed.