Hahn v. Petters & Co.

207 N.W. 291, 189 Wis. 145, 1926 Wisc. LEXIS 71

• Court: Wisconsin Supreme Court
• Decided: February 9, 1926
• Status: Published

Opinion

Eschweiler, J.

This being an action at law to recover for plaintiff’s loss through and by reason of defendants’ fraud, as 'distinguished from an action in equity to rescind, it is necessary that plaintiff allege and show, in addition to the fraud, that he has suffered damage. 26 Corp. Jur. 1167, 1169; 12 Ruling Case Law, 388, 390; Commercial Bank v. Firemen’s Ins. Co. 87 Wis. 297, 302, 58 N. W. 391; Potter v. Necedah L. Co. 105 Wis. 25, 33, 80 N. W. 88, 81 N. W. 118; Denis v. Nu-Way P. C. Co. 170 Wis. 333, 341, 175 ; International M. Co. v. Priem, 179 Wis. 622, 624, 192 N. W. 68.

In this case there are no allegations showing financial irresponsibility of the mortgagors ; any proceedings taken against them; or that there is or can. be no redemption under the foreclosure sale. The plaintiff here having elected to retain the note and mortgage; to foreclose; bid in and obtain, for the present at least, the. premises, must go further and show damage; for as said in Shaw v. Gilbert, 111 Wis. 165 (86 N. W. 188), at p. 191, “If he ultimately receives the full amount of his claim, he suffers no damage and can recover none, although that results from subsequent appreciation of security or subsequently attained solvency of the debtor.”

That some such required showing as here stated is to be deemed necessary is shown in such cases as Heal v. Stoll, 176 Wis. 137, 185 N. W. 242, involving the sale of a second mortgage represented to be as good as gold, there being allegations of the insolvency of the mortgagor and of a sale under the first mortgage for only enough to satisfy it (p. 143) ; Palmer v. Goldberg, 128 Wis. 103, 107 N. W. 478, an action involving the giving of a worthless note in a sale, there being a showing of a judgment against the maker and exhausting all legal remedies (p. 105). To the same effect is Foster v. Taggart, 54 Wis. 391, 11 N. W. 793.

For these reasons the demurrers should have been sustained.

By the Court. — Orders reversed.