34 Wis. 250 | Wis. | 1874
Was the plaintiff entitled to a rescission of the contract, and to the relief granted in the court below, on account of fraud and misrepresentation practised upon him by the defendant? The subject-matter of the contract was a farm, situated in the county of Marquette, consisting of three hundred and eighty acres. The plaintiff is a resident of Milwaukee, and, being desirous to exchange his homestead, situated in that city, for a farm in the country, and seeing an advertisement of this farm, in a G-erman paper published in the city, by one Meyer, a real estate agent, applied to such agent for information about the property. During the negotiations with the agent, the plaintiff was shown a letter written by the defendant to Meyer, giving a description of the farm, its quality, soil, etc. About the 6th day of March, 1872, the plaintiff and his son went to the residence of the defendant in the town of Harris in Marquette county, to see the farm, and then entered into the contract for the sale and purchase of the same. By the terms of the contract the defendant agreed to sell and convey, and the plaintiff agreed to purchase, the farm for $5,000, and certain personal property therewith for the price of $200; the plaintiff conveying his homestead in the city of Milwaukee to the defendant in part payment of the consideration, at the agreed price of $2,200. The trade was consummated by the execution and delivery of the deeds and mortgagé to secure the payment of $8,000, the unpaid purchase money.
In the complaint the plaintiff alleges that it was impossible for him to examine and ascertain the character and quality of
The circuit court found, among other things, as matters of fact — and the finding upon this point is not excepted to by the defendant, and if it were we think it could readily be shown to be in accordance with the weight of evidence — that the defendant assured the plaintiff, while they were examining the farm, that the soil was a rich loam, consisting of a mixture of clay and sand, and was very fertile; that there were about one hundred and twenty acres of good marsh meadow land, so situated that all or nearly all could be mowed with a mowing machine ; that a small pile of clay, which happened to lie exposed to sight near a log house, was a fair specimen of the soil of the farm, except that the soil was some of it a little lighter; and that the farm was well worth $5,000; whereas, in truth and in fact, said representations as to the quality and value of the farm were false and fraudulent, and the soil was not a rich loam consisting of a mixture of sand and clay, but was and is,
Now it is claimed and insisted on the part of the defendant, that conceding these representations and statements in regard to the quality of the soil and the situation of the meadow land to have been made, still it appears that the plaintiff placed no reliance upon them, and consequently is not entitled to a rescission of the contract on the ground of fraud, even if the representations were untrue. Of course the doctrine is well settled, that in order that a misrepresentation in regard to the subject matter of the contract be available as a ground of relief in equity, it must not only be material, but must have been relied upon by the other party in entering into the contract. That is, the party seeking relief must have acted upon the faith and credit of the false representation. The fact referred to in support of the position that the plaintiff did not rely upon the representations and statements in regard to the quality of the soil or situation of the meadow land which were in the letter written to Meyer by the defendant (and which letter was read to the plaintiff), or upon anything said in their conversations upon these subjects, is, that it appears that the plaintiff was unwilling to rely upon these statements, but chose to resort to the proper means of verification before entering into the contract, and therefore visited the farm to examine it .for himself. If, it is said, the plaintiff relied upon the description of the farm as to its soil, etc., as given in the letter, why did he not effect the
But in this case it is insisted that there was no fraud; that the representations made by the defendant with reference to the quality and condition of the farm were substantially true. Upon that question, we think the testimony is overwhelmingly against that conclusion. The soil was shown to be, in the language of the court below, not a rich loam, consisting of a mixture of sand and clay, but was, with the exception of a few small clayey patches, composed of light, sterile sand, greatly exhausted by tenant farming. It was not a good farm, but was a very poor one. It did not produce good crops. The meadow land could not be mowed with a machine ; it never had been mowed in that manner, and tenants who had cultivated the farm say it was impossible, on account of the marsh being so wet in all seasons, thus to mow it. It is true, there is great conflict in the evidence upon these points; but we think the decided weight of testimony sustains these conclusions. There is also, as is common in such cases, a great diversity of opinion as to
It follows from these views that the judgment of the circuit court must be affirmed.
By the Court. — Judgment affirmed.