*1 third-party purchaser, (1) Find a portion flock, (2) Did sell sale, moneys (3) from the Did receive proceeds sale of said (4) and utilize Did retain for its own benefit. nonpayment sharp as to issue
If this does raise moneys plaintiff con- under the due defendant of allegation would. tract, to understand what it is difficult county proper judge awas held that Wood The trial need not be action and that the case place in this of trial turkeys, down, shipped as were up and crated for county of the motion His denial for trial. Jefferson change be affirmed. venue should Hanley joins Justice that Mr. state I am authorized this dissent. Inc., Buick, Rank & Respondent, v. Son Williams, Appellant. September October Argued 1969 . Decided
No. 147. 807.) reported (Also W. 2d in 170 N. *3 argument appellant and oral For the there were briefs Ralph by Rosenbaum, Jr., K. of Milwaukee. M. respondent Thomas
For the there was a brief argument by Mr. Jacobson, Mr. and and oral Jacobson Melnick, David A. both Milwaukee. appeal questions on J. The two raised this
Hanley, are: against
(1) finding of Is the trial court’s fraud evidence; great weight preponderance and clear attorney (2) Is entitled to fees excess (1) (Rule) of the amount 251.23 sec. allowed sec. 251.84, Stats.?
Finding Fraud. alleging consistently party has held that the This court proving it clear and convinc- fraud has the burden of findings ing court evidence and that factual of the trial great weight upset contrary to the will not be unless preponderance and clear of the evidence.2 Based duty appeal principles on it is this court’s these properly fraud if all elements of have been determine established. that a order to establish was fraudu- establish, first, one must the statement of fact
lent *4 untrue; second, that it was made with intent to defraud is purpose inducing party the of the other to and for act it; third, upon that he in upon did fact it and thereby act, injury damage. induced to to his or was 1 (1964), in Oshkosh v. Scieszinski First Nat. Bank 2d 26 Wis. 308, 569, 131 and cases cited therein. 2d N. W. 2 Highway Corp. (1968), v. State Comm. Schroedel 38 Wis. 2d 562; 424, Eberle v. Joint School (1968), N. W. 2d Dist. No. 1 157 651, 155 2d N. W. 2d 573. Wis. 37 McCluskey (1966), 245, 142 v. Thranow 2d N. W. Wis. 2d 787. question to the
As first element there that the is alleged advertisement and of the the oral question salesman The were false. in was automobile simply equipped conditioning. with air argument, however,
Some raised has been as to whether any part appellant there was intent on the of the to respondent. regard advertisement, defraud the In to the respondent argues very highlighting that “Factory Conditioning” words an intent evinces Air argument Although quite unpersuasivc to defraud. is light highlighting consistency in of the with which today’s advertising, “possible” in used automobile it is to draw such an inference. appellant
The there no intent contends was manager good defraud and that its used-car acted in faith placing in advertisement with TheMilwmkee Journal. manager At the trial used-car testified that it his practice orally man dictate the ads to the Journal day they however, proofs, before were to run. day never returned to him until the after ad had were eliminating any opportunity run, thus correct errors dictating either him in or in made Journal printing.
Although very possible appellant it is that the did act good Tiger faith, held in First Nat. Bank this court 113, 121, ton v. Hackett Wis. N. W. representations, . . If made the defendant] “. [the material, they false, were which were by relied damage, plaintiff, and caused the it was immaterial they made bad faith or not.” See also: whether were Neas v. Siemens 102 N. W. 2d alleged regard misrepresentations to the oral salesman, appellant’s is, course, there conflict in testi- mony. Despite salesman, denial however, there is *5 could court upon evidence which the trial sufficient they were made and that were find that such statements respondent. intent to defraud the made'with reliance argues Appellant’s there was counsel that no fraud. respondent and therefore there was that the in- only advertisement that The record indicates appeared in The one which troduced into evidence was 21, ex- On direct March 1968. Journal on Milwaukee response in to respondent testified that amination the March appellant’s lot on used-car to the the ad he went he testified cross-examination, however, 21, On space for the contract and that he had read the that sign- prior to his had been filled the contract date of on the respondent purchased the car ing. Clearly, the 19,1968. the contract —March date of possibly argues could no reliance appellant The appear upon did not placed the ad because it have been days newspaper until after the automobile two in the respondent It thus contended purchased. is a reduction in the ad to seek upon error seized paid for the automobile. price previously argues hand, that since respondent, on the other purchasing the ad must the car ad before he saw purchase days prior and cites to have run for several 135 N. W. (1965), 27 v. Geier Madison 2d 761: from the observable facts be drawn “The inferences to inherently they court, are trial and unless are for the accepted on they should be
impossible or unreasonable appeal. . . .” reasoning accept respondent’s and are of cannot
We prior March opinion infer that the ad ran that to certainly not 19, 1968, evidence unreasonable. Such is convincing. placed in fact been Had the ad clear and simple 19, 1968, have been prior March it would ad, rather than resort to have introduced such matter urged logic now this court. strained Although has not established reliance *6 upon by convincing evidence, the advertisement clear and ample there is evidence to warrant the trial court’s finding misrepresentation appellant’s that the oral of the response attorney’s in fact In salesman was made. to his having question represented as to whether the car was as features, respondent answered, “Oh, yes, certain power conditioning every- it that was full and air Chrysler thing, car, was, and that was a nice it and all jazz.” purchased kind He that of then added that he had “Mainly Chrysler Imperial the car because it was a conditioning.” that it had air by having
Despite salesman, court, denials the trial opportunity witnesses, apparently an had view testimony respondent’s determined that more credible than of the that salesman. question Many
The of reliance another matter. previous court decisions of this have held that one cannot rely justifiably upon obviously false statements. In Whitely (1909), 434, 436, 437, Jacobsen v. 138 Wis. N. W. the court said: unsavory by an “. . . It is defense for a man who false induces another to statements act to assert that if the latter had disbelieved him he would not have been in-
jured. . . . Nevertheless courts will refuse to for act claiming relief of one statements of their to have been misled another’s blindly disregard knowledge who acts falsity opportunity or with such ordinary observation, necessarily by exercise of search, may he have He eyes would known. not close his obviously to what is discoverable him. . . .” apparent It is the obviousness of a statement’s falsity vitiates reliance since no one can falsity. person known the rule Were otherwise a would be free to enter into a per- contract with no intent ultimately under proved form the contract unless it profitable. hand, party the other On who makes an continually tongue slip pencil or would
inadvertent the benefit the contract. lose falsity question is thus whether the statement’s by ordinary observation. have been detected could falsity could have been dis- of a statement Whether through ordinary care be determined is to covered experience light intelligence and of the misled relationship be- Also considered is the individual. to be parties. Kaiser v. Nummerdor tween Hengle 932; 234, 97 N. Sciano v. W. Wis. 689; Siemens, v. 2d and Neas N. W. supra. above fac- cases court has held that the several negated inspect opportunity to and the obvious-
tors *7 falsity. Milling See International of the statement’s ness 622, 68, (1923), Priem 192 and Co. v. 179 Wis. N. W. Whitely, supra. v. Jacobsen negating however, no case, such factors
In the instant respondent that, being specifically The testified exist. capable high reading graduate, he of both a school writing. possessed is he It also fair to assume that and degree of acumen in he and his brother business fiduciary operated relationship their No own business. They parties. each between the dealt with other existed length. appellant no effort made inter- at arm’s respondent’s car, but, the examination fere with contrary, him to take car from the on the allowed the period and premises for a of one one-half hours. Although falsity of a is the obviousness statement’s fact, ques question court has decided this some Mfg. Allen-Hough Prime v. a matter of law. Co. tions as 70; Carryola 72, (1933), 210 245 Co. Wis. N. W. Acme Corrugating v. and Metal Co. Northern Co. Chair Crafts 415, 582; 244 8, 243 N. W. N. W. (1932), Wis. v. Wis. Plantikow Wolk N. W. 922. Supply Co. v. Ernst Hobbs In H. W. against 615, an action 170, 70 N. W. 2d was started fraudulently inducing plaintiff for the defendant Although
extend him credit. the defendant had told the plaintiff’s representatives that he had financial back- ing another, they attempt made to determine backing. whether he had such The defendant contended justified that such reliance was not and the court stated: may finding “. . We . not disturb the trial court’s question against great weight unless it is preponderance clear of the evidence. We believe that it is. It ordinarily is true one positive, distinct, to whom a representation and definite has been made is entitled to representation on such and need not make further inquiry concerning particular facts involved. It just true, however, may as that one not under all cir- blindly disregard cumstances. act on a statement anof opportunity to learn the truth when the exercise of ordinary attention he would have learned it. . . .” ample instant case the oppor- had tunity to determine whether the car was air-conditioned. He had examined the car on the lot and had been allowed unaccompanied to remove the car from the lot a sales- period approximately man for a one and one-half normally This hours. customers were not allowed to do. great required No search was disclose absence of air-conditioning flip unit since a mere aof knob was necessary. conditioning was, all that was If air as stated respondent, purchased he car, the main reason try it is doubtful that he would the air conditioner. plain that, “It seems whether *8 question made, [respondent] was the failed to exercise protection easily that care for within own which was [his] power exercise, and, under all the circum [his] stances, justified relying upon was not in such a [he] Acme representation, Chair & Metal Crafts if made.” Co., Corrugating Co., Northern supra, v. page at 17. conclude that a matter We as of law the justified the under facts circumstances was not in relying representation upon the oral of the salesman. brought an is action in fraud and not in This action for warranty. a breach
248 request fees respondent’s for need not consider
We (1) 251.23 allowed sec. in of the amount excess reversing ruling 251.84, Stats., in of our (Rule) view sec. of the circuit court. the order By reversed. the Court. —Order so (dissenting). there is a time when At Wilkie, J. majority, in protection, emphasis much on consumer emptor doctrine without effect, caveat old revitalizes the mentioning specifically it. respondent could majority opinion holds that representation on the law, have relied a matter of
not, as conditioning car in since there was air that obviously false. was majority that the “statement’s concedes While has court falsity question fact” it states “this questions of law.” as matter decided some such majority support its conclu- cited The cases as a matter of law can matter be settled sion distinguishable clearly on their facts. are Carryola Allen-Hough Co.1 the Mfg. v.Co. In Prime bargaining relatively equal were of parties involved he who claimed was Furthermore, the defendant power. plaintiff by representations made defrauded false. the statements were whether position to know in a The court said: representatives, in- their because “The defendant’s product and customers connection with timate gener- familiarity in with business plaintiff and their understanding and brought
al,
the defendant
knowl-
relying on
edge
made.”
precluded
from
the statement
them
which
v.
So, too, Acme
and Metal
Co. Northern
Chair
Crafts
against
finding
court,
that it was
Corrugating Co.,3
72,
249 great weight preponderance and clear of the evidence for the defendant, Corrugating Northern Company, have allegedly relied on an false statement made plaintiff’s predecessor, said: “. . . Corrugating Northern Company negotiating was
in a field in which familiarity it had considerable and easy ... it was not the victim of misrepresen- fraud and tation within that long experience field. Its business familiarity its patents, patent with rights, prac- and the tices of the patent United placed States office it position where it was able length to deal at arm’s with 4 (Emphasis Mr. added.) Schmitt.” In the respondent instant case the was an individual bargaining large with a dealership. car There is no evi- dence to show that was familiar with air-conditioning systems. auto The false advertisement air-conditioning said that the unit in factory the car was equipment. Thus, it can be inferred that there would be box-type unit under the dashboard which would be readily apparent upon entering the Presumably, car. factory equipped unit would be housed under the hood Similarly, of the car. purchased fact that car was in March rather than the midst of a heat wave significance would tend to reduce respondent’s conditioning failure to purchase. test the air before Wolk,5 plaintiff In Plantikow v. and the makers brought together by of a certain note were the defendant jury held that a presented this court issue was right plaintiff’s as to on a as to responsibility inquiring the makers’ without toas their ability pay. property and Supply Ernst,6 Hobbs Co. v. H.W. another situation plaintiff presented in credit, which extended representing backing that he had the
defendant financial 4 page Id. at 12. 5 922. Wis. 208 N. W. N. W. *10 attempt to determine another. Plaintiff made no backing. had
whether defendant by a plaintiff In both of cases the was induced these cir- to extend In each case false credit. plaintiff have cumstances made it that the should obvious inquiry representatives. made a suitable to check the falsity representa- Here, I hold that would that it could be held as a matter tion was not so obvious right rely respondent had on It it. of law that the finding reliance the the finder of fact was for right court, by implication, found had trial great finding against That is not thereon. weight preponderance I of the evidence. would and clear affirm.
I am authorized to state that Mr. Justice Beilfuss join in this dissent. Mr. Justice Heffernan County Appellant, v. Jefferson, Roraff, ex rel. State Judge, Respondent.* September 4, Argued 1969 . Decided October 1969. No. 157. 691.) (Also reported in 170 N. W. * rehearing denied, costs, without on Motion for November