Warner v. Benjamin
89 Wis. 290
Wis.
1895
Check Treatment
WiNslow, J.

The record before us is quite voluminous, and there are many exceptions to ruling's made upon the trial. We shall not attempt to state these exceptions in detail, but shall simply lay down some general legal propositions upon some of the questions raised by the record, the rulings upon which we regard as erroneous.

1. There was evidence tending to show that the plaintiff *295was informed by ber husband and by one Dixon (who had ’been to the mines and investigated them) of their condition before she purchased stock, and that she was advised not to buy. The court was requested to submit the question to the jury whether she had been so informed or advised prior to her purchase, but refused to do so. This question should have been placed before the jury in some form. If the plaintiff had notice of the actual facts, or had knowledge of such facts as would have led to the discovery of the truth •by the use of reasonable diligence, and failed to use such diligence, she cannot now say that she was defrauded in the purchase. She cannot close her eyes to the facts which are before her, or to the information which is at hand. Mamlock v. Fairbanks, 46 Wis. 415.

2. The court charged the jury on the question of damages that the plaintiff’s loss was the true measure of her •damages, and, it appearing that the stocks were of no present value, the jury assessed her damages at the amount which she paid for the stocks. This was erroneous. The evidence showed that for a considerable time after the plaintiff’s purchases of stock there was a market value in Milwaukee for such stock, and that much of it had even risen in market value. The well-established rule of damages upon a sale of personal property which is voidable on account of fraudulent representations is the difference between the real value of the article sold at the time of the sale and what the value would have been had the representations been true. Birdsey v. Butterfield, 34 Wis. 52; 3 Suth. Dam. 591; Vail v. Reynolds, 118 N. Y. 297. Upon this subject the market value of the stock at or about the time of the sale is undoubtedly evidence bearing on the question of its real value, ■although not necessarily conclusive. 3 Suth. Dam. 591.

3. As will be seen by the special verdict, the court obtained from the jury, in answer to the third, fourth, and' fifth questions, answers to the effect that the organizing of *296several raining companies with, a nominal capital of $1,000,000,. representing an actual investment of a much less sum, and putting the stock on the market for sale, was a fraud on the plaintiff, who was a purchaser without notice of the facts. It is difficult to see on what theory these questions were submitted to the jury. The plaintiff charged no such fraud in her complaint, nor in any amendment thereto. ' She charged only certain specific false representations. The defendants were entitled to rely upon the issue which she presented them. Rut, even had this issue been presented, the-plaintiff, by her own testimony, sIioavs that she did not rely on the statement of capital stock contained in her certificate. She says that she does not know Avhether she ever thought about the certificate representing the property to be worth $1,000,000. Under these circumstances it was clearly error to submit these questions to the jury, as they had nothing-to do with the case.

4. The representations Avhich the jury found were made by Benjmvm and by Bates will be found fully stated in the statement of the jury’s verdict contained in the statement of the case herein. There are certainly some parts of these representations which do not amount to false representations. An actionable false representation must be one relating to an existing fact or past event. A mere opinion,, prediction, or promise of a future condition of things is not a representation upon which a party has any right to rely. Sheldon v. Davidson, 85 Wis. 138. In the latter class of promises would certainly fall the statements that it was impossible for the plaintiff to lose upon her investment and. that the mines would pay dividends in the near future.. These alleged statements, therefore, are entirely immaterial.. It may be that, as to the remaining false representations,, they may form foundation for a recovery, although they certainly verge very closely upon expressions of opinion or mere prediction as to the future, and they might reasonably *297be understood as such.. The appellants asked that the question whether they were so made and understood be submitted to the jury, and we think such a question should have been submitted.

We have touched upon the main questions presented by the record, and do not deem it necessary to notice many minor questions which are raised but may not occur upon another trial.

By the Court.— Judgment reversed upon both appeals,, and cause remanded for new trial.