O'Day v. Meyers, 147 Wis. 549

147 Wis. 549 | Wis. | 1911

Vinje, J.

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. Titsworth, 10 Wis. 320; Kane v. Kock River C. Co. 15 Wis. 179. Tbe title tendered constituted a marketable title and complied with, the provisions of the contract of sale. Maxon v. Gates, 136 Wis. 270, 116 N. W. 758.

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 entirely barren of any proof that Bolzendahl was the agent of appellant. In his amended answer he alleges “that this defendant went in the company of one E. W. Bolzendahl, who acted as the agent of said defendant Conway, as defendant is informed and verily believes, in procuring this defendant to go to Grand Rapids to consider said matterand on the trial appellant testified, “Mr. Bolzendahl called on me about May 7 th or 8th. I could not tell now, on a day, and told me that he had a friend up at Grand-Rapids that had some land for sale at a bargain. He said The land was worth between $25 and $35 an acre,, and he asked me to find a purchaser for him, and I think that we better go up to look at the land.’ He said it could be gotten for $17.50 an acre. He says that he came to me to advise me to go up there with him. He asked Bolzendahl to find a purchaser for him. And he wanted me to go up and look at the land.” The only basis for a claim that Bolzendahl acted as the agent for Meyers rests upon the fact that he was the brother-in-law of appellant and that they had sometime previously had business transactions with each other. In view of the allegations of the amended answer and the testimony of the appellant upon -the trial it is undisputed that Bolzendahl was the agent of Conway, and of him alone, and that Meyers was aware of that fact. Hence, even if Conway paid Bolzendahl $50 as a commission and not as a mere gratuity, as Conway claims, the validity of the contract would not be affected thereby.

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 Monday, and it was equally optional with. Meyers to do likewise, since the Sunday agreement was not intended to be consummated or completed till a delivery was made. A contract signed on Sunday but not delivered till a secular day is valid. Farwell v. Webster, 71 Wis. 485, 37 N. W. 437. So an agreement fixing the terms for a settlement of a trespass, though made on a Sunday, has been held to be binding upon the parties if executed and carried into effect on a subsequent secular day. Taylor v. Young, 61 Wis. 314, 21 N. W. 408; Hopkins v. Stefan, 77 Wis. 45, 45 N. W. 676; King v. Graef, 136 Wis. 548, 117 N. W. 1058. And where an organ, a book, and a stool were purchased on a Sunday and the organ delivered on the same day, it was held that a request by the purchaser on a subsequent secular day for the delivery of the book and stool, coupled with an expression of satisfaction with the organ, constituted a sufficient week-day acceptance to validate the purchase of the organ. Schmidt v. Thomas, 75 Wis. 529, 44 N. W. 771. It has uniformly been held elsewhere also that a contract entered into on a Sunday but delivered on a secular day is valid. Harris v. Morse, 49 Me. 432, 77 Am. Dec. 269; Schwab v. Rigby, 38 Minn. 395, 38 N. W. 101; Barger v. Farnham, 130 Mich. 487, 492, 90 N. W. 281; Gibbs & S. Mfg. Co. v. Brucker, 111 U. S. 597, 4 Sup. Ct. 572; Beitenman’s Appeal, 55 Pa. St. 183. This is on the ground that a contract requiring delivery is not complete until delivery is made, and when that occurs on a secular day the contract, in contemplation of law, is made on that day.

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 him as an adverse party under see. 4068, Stats. (1898). In Hunter v. Bosworth, 43 Wis. 583, upon an appeal by certain defendants whose interests were adverse to those of their code-fendants, it was held that the codefendants would, upon proper application, be treated as respondents in the action. And in Rogers v. Shove, 98 Wis. 271, 73 N. W. 989, where a mortgagor appealed from an order confirming a sheriff’s report of sale on foreclosure, it was held that the purchaser was the principal adverse party and must be served with notice of the appeal under sec. 3049, E. S. 1878, providing for notice to “the adverse party.” Sec. 4068, Stats. (1898), provides that “any party to the record in any civil action . . . may be examined upon the trial ... as if under cross-examination, at the instance of the adverse party or parties or any of them.” The term “adverse party” used in this section means a party whose interests are adverse to those of the party seeking to ■call him, and the fact that both may be named in the pleadings as plaintiffs or defendants is immaterial. The true test is, Are their interests adverse? Crowns v. Forest L. Co. 99 Wis. 103, 74 N. W. 546.

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 circumstances of tbis case, prejudicial. Where a party is properly called under the statute for cross-examination his counsel has no right to re-examine him at the close of such cross-examination. The statute contemplates no re-examination; and if one were allowed, it would permit the adverse party to prove his case, or at least a portion thereof, as a part of the opponent’s case. Counsel can call him as his own witness at the proper time, and then examine him fully upon all the issues.

By the Court. — Judgment affirmed.