Darlington v. J. L. Gates Land Co.

138 N.W. 72, 151 Wis. 461, 1913 Wisc. LEXIS 3

• Court: Wisconsin Supreme Court
• Decided: January 7, 1913
• Status: Published

Opinions

The following opinion was filed October 29, 1912:

Vinje, J.

The case was tried on the complaint before this court in Darlington v. Gates L. Co. 142 Wis. 198, 125 N. W. 456, and it was there held that it sufficiently alleged a cause of action for fraud and also one for -a breach of the covenants of warranty in the deed. Claim is now made by the defendant that the action is one for fraud, and that as to the Diamond lands, since no actual fraud was shown, the representations merged in the covenants of the deed and there is nothing to support the judgment. The question of whether this is -an action ex delicto or ex contractu is purely academic. True, as stated by counsel for defendant, if the action is ex delicto then the measure of damages is the difference between the market value of the land as it was and the market value as it would have been had it been as represented, while if the action is ex contractu it would he such fractional part of the whole consideration paid as the value of the timber at the time of purchase bore to the whole purchase price, with interest, as announced on the former appeal. 142 Wis. 198, 204, 125 N. W. 456, citing Docter v. Hellberg, 65 Wis. 415, 27 N. W. 176. But “such fractional part of the whole consideration paid as the value of the timber at the time of purchase bore to the whole purchase price” is nothing more nor less than the value of the timber at the time of purchase, and that was exactly the measure of damages applied in this case. Every witness who testified to the difference between the market value of the land as it was with, the timber standing thereon and its market value without the timber, said that the difference in market value was the value of the timber removed, and that only was taken into consideration. The value of the timber removed, with interest, was the only element that made up the damages assessed. No lower measure of damages could have been applied under either kind of action, 'and defendant, therefore, would have fared no better had the action been expressly labeled ex contractu. So it becomes unnecessary to decide whether or not misrepresentations amounting only to constructive fraud merge in the covenants of title, and the question is reserved for future consideration and determination.

Error is 'alleged because the court instructed the jury:

“In order to answer this question [the third one] in the affirmative, you must find from the evidence that the plaintiffs believed said statement to be true, and that said statement constituted a material inducement for them to purchase the land. It is not necessary, however, that the plaintiffs should have relied exclusively upon such statement as an inducement to the plaintiffs to purchase the land, if such statement exerted a material influence upon their minds, inducing them to purchase.”

It is claimed that in order to constitute actionable fraud the false representations must have been the sole cause or inducement that led to the contract or agreement. Such is not the law of this state. It has been repeatedly held that if the representations constitute a material inducement towards entering into the contract it is sufficient. Davis v. Nuzum, 72 Wis. 439, 40 N. W. 497; Beetle v. Anderson, 98 Wis. 5, 73 N. W. 560; Krause v. Busacker, 105 Wis. 350, 81 N. W. 406; Benolkin v. Guthrie, 111 Wis. 554, 87 N. W. 466; Hurlbert v. T. D. Kellogg L. & M. Co. 115 Wis. 225, 91 N. W. 673; J. H. Clark Co. v. Rice, 127 Wis. 451, 106 N. W. 231; Post v. Roberts, 127 Wis. 605, 106 N. W. 1099. The language used in Shaw v. Gilbert, 111 Wis. 165, 185, 86 N. , “A false statement relied on, and without which the transaction would not have hfeen made, constitutes legal deceit, although it may not have been the sole and only motive or consideration moving the defrauded party thereto,” may be susceptible of the inference that it would not constitute legal deceit if the transaction would have taken place had it not been made. But that such is not its true construction is readily perceived when reference is had to other 'adjudications in this court wherein it is held that if the representations constitute a material inducement and are relied upon, that is sufficient. The rule is thus stated in Farrar v. Churchill, 135 U. S. 609, 615, 10 Sup. Ct. 771:

“The representation must be in regard to a material fact, must be false, and must be acted upon by the other party in ignorance of its falsity and with a reasonable belief that it was true. It must be the very ground on which the transaction took place, although itAs not necessary that it should have been the sole cause, if it were proximate, immediate, and material.”

.We find no error in the instruction to which exception is taken.

It is urged that the damages assessed are higher than any evidence in the case warrants. It is true the assessment is slightly higher than the testimony of any one single witness produced by plaintiffs would support. But there is evidence on behalf of plaintiffs which sustains the assessment. Eour kinds of timber were removed from plaintiffs’ lands, namely, basswood, pine, hemlock, and ash. The testimony of the witnesses varied somewhat as to the price per thousand feet of the different kinds of timber testified to by them, but the total value of the timber, based upon the highest scale and the highest market price thereof testified to, would exceed the amount of damages assessed by the jury. The assessment, therefore, is not as high as it might have been made and still be supported by the testimony. The jury is not compelled to accept, and rely solely upon, the testimony of 'any one witness in assessing damages, or merely to make a computation based upon any particular testimony. Merrill v. Nightingale, 39 Wis. 247; Churchill v. Price, 44 Wis. 540.

It is also urged that the court erred in allowing interest upon the market value of the timber from the time the contract was entered into. This court has held “that there are cases for breach of contract, and cases sounding in tort, where the damages are wholly unliquidated, but where they may be fixed by known and reasonably certain market values or other definite standards, where interest is to be allowed from the time of the breach or the commission of the injury.” J. I. Case P. Works v. Niles &. S. Co. 107 Wis. 9, 17, 82 N. W. 568. See, also, Gross v. Kechert, 120 Wis. 314, 97 N. W. 952. Here the damage to plaintiffs was the market value of the timber at the time it was removed. Such value could be found by known and reasonably fixed market values or other reasonably definite standards, and the court properly allowed interest from the time of the date of the land contract when plaintiffs became the equitable owners of the lands. Krakow v. Wille, 125 Wis. 284, 103 N. W. 1121. At that time the evidence shows that both Wood and Diamond were in possession of their respective tracts of land on which they had bought the timber and had commenced the cutting thereof.

By the Court. — Judgment affirmed.