147 Wis. 549 | Wis. | 1911
Although the case was tried by the court without a jury, appellant assigns numerous errors relating to the admission and exclusion of. testimony. ' Only three are deemed worthy of consideration.
After having introduced testimony as_to the market value of the land, appellant sought in his evidence in chief to introduce testimony to show what price had been paid for individual parcels of other lands. The court excluded such testimony, stating that it might perhaps be properly received later in rebuttal, but was not competent as evidence in chief on his behalf. The exclusion of such evidence was not error. O’Dell v. Rogers, 44 Wis. 136; Maxon v. Gates, 136 Wis. 270, 116 N. W. 758. The court also properly excluded the record of transfers purporting to show the price for which other lands in the same town as that in question were sold. Seefeld v. C., M. & St. P. R. Co. 67 Wis. 96, 29 N. W. 904; Esch v. C., M. & St. P. R. Co. 72 Wis. 229, 39 N. W. 129.
Plaintiff alleged title in Conway,' and appellant entered only a general denial to such allegation. He did not plead or point out in his answer any insufficiency in such title. The title shown by plaintiff rested not only upon, deeds of conveyance from former owners, but upon a tax deed fair on its face, duly issued and recorded more than three years prior to the date of the contract in suit, and also upon a judgment afterwards entered in an action to quiet title founded upon said tax deed, in which the title was by the court declared to vest in Conway’s grantor. The court therefore properly excluded testimony tending to show that the grantee in the tax deed stood in such a fiduciary relation to the owner of the land that he could not take a valid tax deed thereon. The judgment in the action to quiet title founded upon the tax deed was conclusive as to the title of the premises against the former owners of the land or any one claiming through or under them. The question sought to-be raised by the testimony was forever set at rest by that judgment. Marvin v.
The finding of the trial court to the effect that no false or fraudulent representations were made by the defendant Conway inducing the appellant to purchase, is vigorously assailed. There is ample evidence to sustain the court’s finding. The only representations claimed to have been false and fraudulent were statements made by the defendant Conway to the effect that the land in question was worth from $20 to $25 per acre. The appellant examined the land personally, and testified that when he was there viewing it he saw no objection to it and expressed no dissatisfaction whatever concerning it. It is elementary that mere representations as to value, where the purchaser is presumed competent to judge thereof and has full opportunity to, and does, examine the property to be purchased, do not constitute false representations entitling the purchaser to rescind on that ground, even though relied upon by him. Such representations as to value constitute nothing more than the mere opinion of the seller. Mamlock v. Fairbanks, 46 Wis. 415, 1 N. W. 167; Maltby v. Austin, 65 Wis. 527, 27 N. W. 162; Mosher v. Post, 89 Wis. 602, 62 N. W. 516; Farr v. Peterson, 91 Wis. 182, 64 N. W. 863; Forest L. Co. v. Hanley, 94 Wis. 23, 68 N. W. 413.
Appellant also claims that one Bolzendahl acted as his agent, and that, without his knowledge, he was also the agent of the defendant Conway, who paid him $50 after he had procured a purchaser for him, and that therefore the contract is void because contrary to the provisions of sec. 4575m, Stats. (Supp. 1906: Laws of 1905, ch. 129, sec. 1). It does not become necessary to consider whether or not, if the facts were as claimed by appellant, the contract would be void under the provisions of the statute referred to, because the evidence is
jit appears from the facts found by-the court and the undisputed testimony that although the contracts were signed on Sunday they were not delivered until the following dayi They, together with the check and note, were left in escrow with one Miller with directions to be delivered on Monday, only in case Conway, after an investigation, was satisfied with the financial responsibility of Meyers. It was therefore optional, with Conway to accept or refuse the contract on Mon
The defendant Conway in his answer admitted all the allegations of the complaint. He was therefore not an adverse party to the plaintiff, though nominally appearing so in the pleadings. Appellant in his answer denied all the material allegations of the complaint. Under such circumstances Conway became in fact an adverse party to his codefendant, and the court erred in not permitting appellant to cross-examine
But the court informed appellant, when Conway was called .as his witness, that he might put leading questions to him if he appeared hostile. An exhaustive examination covering ■all the main points in the controversy was gone into, and many leading questions asked the witness. Appellant did in fact cross-examine him, and hence no prejudicial error resulted. Especially must that conclusion be drawn in a case tried before the court.
Plaintiff was permitted to call Conway as an adverse party under the statute, and error is assigned because appellant was not allowed to examine him at the close of such cross-examination. It follows from what has been said that plaintiff had no right to call Conway as an adverse party. But no error is assigned on that ground, nor was it, under the circum
By the Court. — Judgment affirmed.