174 Wis. 321 | Wis. | 1921
The following opinion was filed March 8, 1921:
This is an action to recover funds from the defendants Newman, Dow, Morris, and Lyons which, it is alleged, they fraudulently obtained and appropriated to their own use out of the proceeds realized on the sale of the lands described in the complaint in the manner set forth in the foregoing statement of facts. The alleged grounds of recovery are that these four defendants entered into a conspiracy to retain secret profits out of the amount paid for the lands, aggregating the sum of $24,533.71. It is alleged that they obtained the sum in the form of cash, notes, and in paid-up interests in the lands purchased from the Mussel-shell Valley Land Company and sold to the Wheelock & Wheelock corporation on April 6, 1910. The alleged facts set out an executed conspiracy and that it was carried out by misrepresentations and fraudulent concealments by the four designated defendants and that the plaintiffs and others were thereby defrauded out of their just shares of the profits of this land deal. The action is planted in equity, and the complaint proceeds upon the idea that the facts alleged show that the arrangement entered into by all the parties to the land transaction constituted a partnership and all of the subscribers to the syndicate members thereof. An. examination of the facts fails to show that the parties intended to form a partnership. In the law of partnership the element of contract between the persons associated to form a co-
“A 'joint adventure’ may exist where persons embark in an undertaking without entering on the prosecution of the business as partners strictly, but engage in a common enterprise for their mutual benefit; they each have the right to demand and expect from their associates good faith in all that relates to their common .interests.” Jackson v. Hooper, 76 N. J. Eq. 185, 74 Atl. 130.
The relation to such an adventure is fiduciary in its character, and each co-adventurer is obligated to his associates to deal in good faith in all matters pertaining to their enterprise. The relationship of the parties to such an adventure has been repeatedly recognized in the decisions of this court. See the cases cited in. the opinion of the court in Goldman v. Cosgrove, 172 Wis. 462, 179 N. W. 673. It is there declared:
“When one becomes a member of a group or association of individuals united for the purpose of prosecuting a joint*329 or common enterprise, such as the purchase of property, each member of the group owes to every other member thereof the dut)!- of fair, open, and honest disclosure, and no member thereof can by connivance, deceit, or suppression of facts within the right, or. to the advantage of every other member thereof to know, procure or. accept secret profits, commissions, or rebates to the disadvantage of his co-adventurers. ... A violation of his duty in that regard constitutes actionable fraud, and the usual remedies for the redress of fraud are available.”
It is clear from the facts pleaded that the plaintiffs and defendants in this case did embark in an undertaking without forming a partnership, but for the mutual benefit of buying and selling the land on which Newman had an option, and to sell it to the Goodrich corporation at a profit, which was to be divided between them in proportion to the subscription they made to provide the fund to consummate the purchase and sale. Since the four defendants who are alleged to have received a secret profit out of the deal were fiduciaries in relation to all the other subscribers, they became responsible in damages to such other subscribers for the alleged fraudulent concealment and deceit. Viewing the complaint in the light of its allegations, it in substance and effect sets forth a claim, as the circuit court held, “. . .to recover from the four alleged conspirators the amount of secret profits which it alleged they obtained by fraud and deceit, whereby each of the plaintiffs suffered a wrong and proportionately were deprived of moneys to which they were entitled.” The remedy appropriate to redress such a wrong has been repeatedly applied in cases that have come before this court. In Jones v. Kinney, 146 Wis. 130, 131 N. W. 339, an action was sustained to recover damages for fraud in receiving secret profits in the sale of a lease of oil-bearing lands by some of the co-adventurers. To the same effect is Goldman v. Cosgrove, 172 Wis. 462, 179 N. W. 673, and cases there cited. See, also, Church v. Odell, 100 Minn. 98, 110 N. W. 346.
We think the facts as pleaded, and which must be assumed
The appellants seek to distinguish the liability of Morris from one for damages for deceit and fraud upon the ground that he acted as trustee of an express trust and hence is accountable as such in equity for the funds that came into his hands and therefore all causes of action against him were
“We feel induced to hold that as neither the statute nor the precedents of this court warrant exception from the protection of the limitation statutes of those who, though holding as fiduciaries and trustees, have at all times been liable to remedy by suit at law for their misconduct as such, we may not with propriety take from them that protection which the statute, in terms, gives.”
We find that the trial court was right in holding that the alleged fraudulent conspirators were liable in a legal action for the wrongful conduct of obtaining secret profits out of
By the Court, — The order, appealed from is affirmed.
A motion for a rehearing was denied, with $25 costs, on May 31, 1921.