144 Wis. 506 | Wis. | 1911
After the dismissal of a former appeal in this cause (141 Wis. 304, 124 N. W. 406) the appellants caused final judgment to be entered, and now on appeal from that judgment seek to assert the grounds for reversal attempted ■on the former unauthorized appeal. Pending this appeal Charles A. Welch died, and upon suggestion of his death it is ■ordered that his appeal revive and be continued in the name of his personal representative, Charles G. Welch.
The amended complaint averred that on February 6, 1903, the appellant White Rode Mineral Byring Company, a corporation, desiring to make sale of its property, and certain shareholders therein, including the defendant Charles A. Welch, desiring to make sales of their shares of stock therein, “for the purpose and with the intent to give to the defendants, E. R. Estberg, Frederick Phelps, and T. E. Ryan, and their ■assigns, for a limited time, an exclusive agency for the sale of such property and stock, and to insure to said parties as commissions on such sale all sums which a purchaser found by such agents should be able and willing to pay in excess of the net price therein named, made, executed and delivered to E. R. Estberg, Frederick Phelps, and T. E. Ryan and their assigns an option in writing, whereby the said company and said stockholders, for a valuable consideration, agreed to sell to the said Estberg, Phelps, and Ryan, their heirs and assigns, all of the assets, business, good will, etc., of the White Rode Mineral Bpring Company within ninety days from the date thereof for $1,250,000.” Thereafter and on Feb
“That as an inducement to the plaintiffs and others, holders of said option agreement, to accept the same and to undertake the finding of a purchaser of said property and stock, and to induce said parties to expend time and money in finding such purchaser, the said Mineral Spring Company and the said Charles A. Welch made and furnished to the holders of said option at or about the time of making of said option agreement a written statement, duly certified to by them, purporting to be an accurate account of the gross earnings and of the expenses and of the net earnings of the business of said company for three years prior to the execution of said option agreement, to wit, for the years 1900, 1901, and 1902, which statement each of the parties to said option agreement implicitly relied upon and on the face [faith ?] of the same expended time and money as aforesaid.”
These representations were carried into the executory contract with the proposed purchaser. They were not true in fact, and for this reason, upon discovery of their untruthfulness, the proposed purchaser refused to carry out or consummate his said executory contract or to close the purchase, whereby the respondents lost their four sevenths of one million dollars in the capital stock of a new corporation which the proposed purchaser intended to organize and which was
Several answers were interposed by the appellants, but it will be only necessary to notice that the option agreement mentioned in the complaint was before the court as part of one or more of said answers, and that there was a plea of accord and satisfaction wherein it was.averred that after the failure of this attempted sale the defendants gave and the plaintiffs received, on May 16, 1904, a new option for $1,400,000 on the same property in satisfaction of plaintiffs’ demands described in the complaint arising under the first option.
The cause came on for trial, and the answering defendants objected to the reception of any evidence under the complaint for the reason that it failed to state a cause of action. This objection was overruled without argument and without prejudice and an exception taken. The answering defendants then moved for judgment on the pleadings, which was likewise overruled without argument and without prejudice and an exception taken. The plaintiffs offered evidence consisting of contracts, letters, and depositions. The trial made considerable progress and further hearing was continued until November 16, 1908, when plaintiffs’ counsel made the following announcement in open court:
“I have decided to discontinue the action. I have become satisfied in talking with gentlemen upon the other side and counsel that the second option which was set up as a defense, and which in my judgment would be a waiver of every claim under the first option, was actually given, and from what I learn from them and through other sources I am satisfied of*511 ■that fact, and therefore I shall enter a discontinuance of the .action.”
Defendants’ counsel requested opportunity to be heard on his motion for judgment on the pleadings and was heard. The circuit court made the following ruling:
“The court is of the opinion that a proper exercise of its •discretion in this matter is the granting of the motion of the plaintiffs to discontinue. This accordingly overrules the defendants’ motion to grant judgment on the pleadings.”
Passing, without deciding, the question whether an option .given for the purpose set forth in this complaint in the form ■of the option annexed to the answer would authorize the .grantees therein to create other agents of the seller of equal •authority with them by assigning to such persons who were in no sense purchasers of the property undivided interests in ■such option (31 Cyc. 1425 and cases in note; 2 Am. & Eng. Ency. of Law (3d ed.) 837, 838, 840; McKinnon v. Vollmar, 75 Wis. 82, 43 N. W. 800; Kohl v. Beach, 107 Wis. 409, 83 N. W. 657), we come to inquire what is the real nature of the cause of action attempted to be set forth. The complaint •avers no breach of contract. It does aver that, by reason of false representations made by the appellants, respondents were damaged in that they were unable to make a sale and so ■earn their profits and in that they expended time and money in the effort to procure a purchaser. We consider it an action for unliquidated damages founded upon deceit and not an action for damages based upon obtaining money or property by fraud. After setting forth the object and purpose of the option and so limiting its scope it is averred that as an inducement to the plaintiffs and other holders of said option agreement to accept the same and to undertake the finding of a purchaser, etc., the said defendants, at or about the time of making such option agreement, made and furnished to the "holders of said option agreement a written statement, etc., •which statement each of the parties to the option agreement
“Even if it be conceded that the plaintiff had no right to rely on the certificate to the insurance commissioner, the repetition of the contents of the certificate in newspaper publications by the bank and others for the very purpose of misleading purchasers of the stock is quite sufficient to hold the bank.”
See, also, Peek v. Gurney, L. R. 6 H. L. 377; Cooley, Torts (2d ed.) 511; Wells v. Cook, 16 Ohio St. 67; Hunnewell v. Duxbury, 154 Mass. 286, 28 N. E. 261; Fowler v. McCann, 86 Wis. 427, 56 N. W. 1085; Louis F. Fromer & Co. v. Stanley, 95 Wis. 56, 69 N. W. 820.
At the time of the assignment of the interest in the option to plaintiffs on February 19, 1903, the right of action averred in this complaint did not survive and was not assignable under the statute then in force. Allen v. Frawley, 138 Wis. 295, 119 N. W. 565; John V. Farwell Co. v. Wolf, 96 Wis. 10, 70 N. W. 289, 71 N. W. 109; Killen v. Barnes, 106 Wis. 546, 82 N. W. 536. Assuming, without deciding, that the present statute (ch. 353, Laws of 1901: sec. 4253, Stats.) affects rights of action accruing prior to and existing at the date of the enactment of that law, still it could not be retroactive in the sense that an assignment of an otherwise nonassignable cause of action made several years before that law went into effect could be thereby made valid. We must therefore hold that the complaint fails to state a cause of action' in favor of the plaintiffs therein, respondents here.
While ordinarily it is within the discretion of the trial court to permit the plaintiff to discontinue an action at law in which no counterclaim is interposed where the application
It is contended that the appellants having taxed costs on the discontinuance and collected and received the amount thereof are thereby barred or estopped from prosecuting this appeal from the judgment subsequently entered. If the costs were conditional, or if the appellants were entitled to other or greater costs on discontinuance than they would be on the judgment which they seek in its stead, or if the taking of costs were inconsistent with the claims which might be urged on the appeal, there would be force in this contention. As it is, the costs were something which the appellants were entitled to whether the judgment be one of discontinuance or one dismissing the action for other reasons. In that case the taking of costs is no bar to the appeal. Fiedler v. Howard, 99 Wis. 388, 75 N. W. 163; Grand Rapids v. Bogoger, 141 Wis. 530, 124 N. W. 659.
It follows that the judgment of the circuit court must be
By the Gourt. — Judgment reversed with costs, and the cause remanded with directions to dismiss the complaint.