166 Wis. 353 | Wis. | 1917
Lead Opinion
Appellants assign error on tbe admission and rejection of testimony and in several particulars which we will not discuss here. Suffice it to say that we have carefully considered them and find no prejudicial error.
Appellants make the further claim that the contract is void as against public policy for the following reason: That by the terms of the contract the plaintiff and the defendants were joined in an enterprise which, if the contract had been performed, would have resulted in the sale of land to third parties at a price of $150 an acre or more, the market value of which was in fact, as found by the jury, but $16 an acre. Citing Morrison v. Bennett, 20 Mont. 560, 52 Pac. 553, 40 L. R. A. 158; Twentieth Century Co. v. Quilling, 130 Wis. 318, 110 N. W. 174; McNamara v. Gargett, 68 Mich. 454,
The term “public policy” is admittedly one of a vague and uncertain meaning, and the power to declare a contract void as being against public policy should be exercised only in cases free from doubt. 6 Ruling Case Law, § 119, p. 710; 1 Page, Contracts, § 326.
In this case there is no evidence to show that the plaintiff, Trumpf, supposed at the time he entered into the contract that the land was of less value than $150 an acre. He was doubtful about its marketability, and his circumstances were such that he could not make the exchange unless those who stood back of him could be assured that the property he was receiving could be realized on. AYhile a question of fact is involved which was not presented to the jury in the form in which it is here presented, under the established rules of law we must treat the case as if it were found adversely to the claim of the appellants. Sec. 2858m, Stats. The jury by its finding expressly negatived the claim, of the defendants that the contract was entered into for the sole purpose of enabling the plaintiff to procure the consent of his creditors to the exchange. This in effect negatives the further claim that the contract was a fraudulent scheme entered into by the plaintiff and the defendants by means of which third persons were to be defrauded. Upon its face the contract is' fair and contemplates no illegal transaction, and in that respect this case is clearly distinguishable from the Bohemian Oats and Coupon Cases, supra, cited to our attention. In those cases it appeared upon the face of the contracts that if carried out a fraud upon third persons must be the necessary result. Ko such situation is presented by the facts in this case. The
The question of whether or not the contract was a valid one must be determined as of the date it was made; its legality cannot be affected by reason of facts subsequently appearing and not previously known, or by what the parties or either of them did in attempting to carry out and perform the contract. The contract was fair upon its face. There is no evidence tending to connect the plaintiff with any conspiracy to wrong or defraud third parties and no evidence which indicates that he had any such purpose or intention. The defendants are experienced real-estate men, familiar with the real-estate business, and if they were mistaken as to the value of the lands which they gave in exchange for the hotel property, we see no reason why their contract, which in effect warrants their judgment, should not.be enforced.
It is claimed that the court in applying the rule of damages laid down in Dunn v. Mackey, 80 Cal. 104, 22 Pac. 64, 66, committed error. We think the court applied the correct rule of damages to the facts in this case. If it be contended that the defendants are unfairly dealt with by reason of the fact that they are compelled to pay the difference between the price at Which they agreed to sell these lands and the value found by the jury, they could very easily have relieved themselves from that situation by purchasing or causing the same to be purchased for their account before the expiration of the year.
By the Qourt. — Judgment affirmed.
Dissenting Opinion
(dissenting). I think the permitting of this judgment for damages to stand is establishing a danger
It is suggested in the majority opinion in this case that plaintiff parted with his property upon the representation of the defendants that the Mercedes tract of 280 acres was worth $150 an acre and marketable; and further, in effect, that this contract was a guaranty by defendants to plaintiff that this tract was of such value and marketable. The contract itself, however, does not say so. It was drafted by an attorney for the plaintiff, and expressly provided that the defendants “shall sell the said 280 acres of land for the said Ernest Trumpf within the said period of time [namely, in one year], at the rate of not less than $150 per acre.” It further provided in paragraph “J” of the contract for a commission of $1,000 to be paid or allowed by the plaintiff for the sale of his property. So that the language of the contract itself plainly provides that the parties contemplated, not a purchase by the defendants or a guaranty of price, but a sale by the three parties to others than defendants. The plaintiff agreed in the contract to devote a reasonable amount of time and effort of his own in assisting such sale, and the first question in the special verdict as set forth in the statement of facts shows that the jury expressly find that he did give such time as he reasonably could to securing the buyers and assisting in selling the 280 acres. So that not only does the contract itself provide that it is a selling contract, but the plaintiff himself, in the most unmistakable way, treated it as such, and should be bound by such treatment of it and. by its language. According to his own statement he did devote his time almost daily for the year in trying to dispose of the property. He caused to be sent out over his own name as agent circular letters with reference to this property and
On the trial plaintiff’s counsel expressly takes the position that this was not an action on the ground of false representations by the defendants as to the value of this property. On the plaintiff’s adverse examination he expressly states that at the time he examined the property prior to the proposed contract in July he did not think that that tract was the right kind of land. He did not think it would sell. He did not rely on what the defendants told him in regard to that land. He did think and believed that the 389-acre tract was better land than the other and ho thought that that piece could be sold for $150 an acre. He did not place any particular value at that time on this Mercedes tract and, though repeatedly asked, he cannot tell what valuation he placed upon it at the time. He did not figure on any basis, in making the contract, on the price of that 280 acres. So that from his own testimony he could not have relied upon a representation by defendants, if any was made, as to the value of the land, even if it be conceded that such a representation
It is, however, immaterial what name is used to describe the contract between the parties. This is nothing but an action bj plaintiff against the defendant to recover damages for the breach of the written contract of September 6th and is not founded upon any claim of fraud.
As measure of damages the judgment awards the plaintiff the difference between the $16 an acre, being the value found by the jury to exist at the expiration of the year after the date of the contract, and the $150 per acre, the selling price specified in the contract; and" in addition to that the plaintiff retains the land itself. In an action upon a contract the question of damages for its breach is solely one of indemnity. Barnes v. Brown, 130 N. Y. 372, 384, 29 N. E. 760.
If there be any doctrine in the law of damages that seems to be fairly and firmly established in this state it is that for a breach of contract the limit of recovery is such damages as may be reasonably considered to have been in contemplation of the parties at the time of the making of the contract as the probable result of the breach of it. McLennan v. Church, 163 Wis. 411, 422, 158 N. W. 73.
This means, I take it, that what may reasonably be considered to have been in contemplation of the parties at the time of the making of the contract is in effect written in, by implication of law, to the contract itself as the standard or measure by which to determine, when the contract is breached, the damages for such breach. If $15 or $16 was the fair, reasonable market value of the land on September 6, 1913, and the following year, when the contract is relied upon by the plaintiff for-the purpose of recovering $134 an acre against the defendants as damages for its breach under the standard recognized by this court, it seems to me a strange rule of law or logic that prevents it being considered as within the contemplation of the parties as the fair market value of the property when the effect of such a contract upon tho
If they should be chargeable with knowledge of the vast difference in price between $15 and $150 per acre for land in the vast state of Texas, where if anywhere land can be-considered nearer a superfluity than a monopoly, then it must follow that to agree to dispose of it at that maximum price on a necessarily credulous and gullible public is a scheme to defraud, and a contract requiring for its fulfilment such necessary legerdemain or peculiar financial ability ought not to have the stamp of approval.
This contract is not like those in which there is an agree
It makes no. difference that the defendants themselves claimed on the trial, or even assert in this court, that the lands in question were as a matter of fact worth $150 per ■acre, or that the question of fraud was not pleaded. The -court does not listen to the one nor wait for the other, but acts of its own accord and with no other promptings than to uphold the dignity of the law. Wight v. Rindskopf, 43 Wis. 344; Rock v. Ekern, 162 Wis. 291, 295, 156 N. W. 197; Decker v. Becker, 143 Wis. 542, 128 N. W. 67; Kreamer v. Earl, 91 Cal. 112, 27 Pac. 735; Boyd v. Topham, 47 Utah, 224, 152 Pac. 1185; 14 Cyc. 458.
If a contract is entered into which has for its purpose a fraud on a third person or on the public, it is subject to the condemnation of the court and not to its commendation. The following are some of the instances in which this court has treated contracts as contrary to such public policy: To prevent competitive bidding at judicial sales where a fraud on a third person is worked (Schmitt v. Franke, 160 Wis. 347, 151 N. W. 793) ; to enable a person to obtain unlawful advantages in voluntary assignment proceedings (Lowe v. Crocker, 154 Wis. 497, 143 N. W. 176) ; if it tends to induce the commission of unlawful acts on the part of the parties to it in procuring evidence or permitting of traffic by the parties with persons guilty of larceny (Manufacturers & M. I. Bureau v. Everwear H. Co. 152 Wis. 73, 83, 138 N. W. 624); if it contemplates a series of sales bound in the end
Tbe contract here might well take its place in the public pillory alongside the Bohemian Oats Cases (Knight v. Linzey, 80 Mich. 396, 45 N. W. 387; Schmueckle v. Waters, 125 Ind. 265, 25 N. E. 281) ; or the getting of $60 worth of buggies by the disposing of coupons costing the individual at the first end of the chain $3.75, as in Hubbard v. Freiberger, 133 Mich. 139, 94 N. W. 727; 9 Cyc. 462; 6 Ruling Case Law, 721. It seems self-evident that the parties to this contract, by agreeing to sell Texas land at $150 per acre that is actually worth $15 an acre,, are chargeable as a matter of law with knowledge that it can be disposed of only to a credulous and unsophisticated public by means of fraud, and that no man, except he be taken advantage of by the strong arm or the superior intellect of a sharper, will buy land in the almost limitless bosom of Texas for $150 an acre that is worth no more than $15 per acre.
The case relied upon by the court below and the cases presented by the respondent here present no such situation as would meet the facts in this case. In Dunn v. Mackey, 80 Cal. 104, 22 Pac. 64, the agreement was to sell for $12,500 property of the value of $9,000. Sprague v. Hart, 11 Cal. App. 782, 106 Pac. 590, was not an action for damages, hut an equitable action in which the plaintiff was entitled to security to the amount which he had paid out and no more. In Ross v. Goldridge M. Co. 14 Idaho, 687, 95 Pac. 821, defendant bought 25,000 shares of mining stock at two cents per share which he guaranteed to sell at five cents per share, the amount involved being $750, and no question of exorbitancy was raised. And in Brown v. Massey, 138 Mo. 519, 38 S. W. 939, the agreement to repurchase was at a profit of ten per cent.
It is true that it appears that no one was induced to buy any of this land at this price. They had a few who nibbled
It is quite plain that if any one bad been sufficiently enticed to purchase tbis property at $150 an acre during tbe year in question upon the representations shown to bave been made to tbe public by tbe plaintiff or defendants in tbis action, tbe parties in tbis action, or any one of them, might well .have been required to disgorge such purchase money in an -action brought by such purchaser on tbe ground of fraud and -deceit upon just such evidence as has been produced in tbis «lase by tbe plaintiff himself as to the nature and character of tbe property. There could bave been no contribution from tbe defendants bad tbe plaintiff been required in such action to repay tbe full amount of such purchase money, because tbe three would bave been joint tortfeasors. Yet in tbis action tbe effect of tbe judgment is to permit tbe plaintiff to recover and retain substantially tbe same amount that be could haye been required to disgorge if tbe contract that be entered into bad been executed, according to its language, its intent, and tbe practical construction given to it by tbe parties themselves.
' I think tbe complaint should have been dismissed. I am authorized to state that Justice Kehwix agrees with me in tbis dissent.
Dissenting Opinion
(dissenting). If plaintiff is entitled to bave tbe transaction disclosed by tbe record judicially enforced, I bave no criticism to make of tbe rule of damages applied; but it seems that such transaction was a combination to induce persons, by false representations, to buy tbe Mercedes tract of land at $150 per acre, — though it was
I favor a reversal of the judgment and remanding the cause to the trial court with directions to dismiss the complaint.