Pratt v. Darling

125 Wis. 93 | Wis. | 1905

WiNsnow, J.

The fraudulent representation upon which the defendant relied as vitiating .the contract of sale was a statement made to him by the agent, Rallen, during the negotiations, to the effect that he had not sold these goods to any other merchant in Manawa and would not do so. The testimony is absolutely undisputed that this statement was made by Killen and that defendant relied upon it, and would not "have purchased had it not been made. It is very certain from the evidence that the sole handling of this line of goods in Manawa was considered important by both parties. It is also undisputed that this statement was untrue, and that Killen in fact had sold the same line of goods fo Schuelke Bros., who are merchants in the same town. Upon learning this fact the ■defendant at once countermanded the order and refused to receive the goods, as we think he had a right to do.

Had Killen’s statement been simply to the effect that he would not sell the goods to any other dealer it would not have constituted a fraudulent representation, not only because this would have been a mere promise and' not a false statement as to an existing fact (Tufts v. Weinfeld, 88 Wis. 647, 60 N. W. 992), but also because it would have been a mere oral agreement with the salesman, which by the written agreement is absolutely cut off. The statement that he had not sold to another was, however, a statement as to an existing fact. It was material and «false, and constituted a substantial part of the inducement for the purchase. It was not an agreement, understanding, or condition of sale, and hence was not cut off or affected by the terms of the written contract. The court was therefore right in holding that the contract was void because obtained by means of a false and -fraudulent representation of fact.

By the Court. — Judgment affirmed.