Kimball v. Antigo Building Supply Co.

53 N.W.2d 701, 261 Wis. 619, 1952 Wisc. LEXIS 316

• Court: Wisconsin Supreme Court
• Decided: June 3, 1952
• Status: Published

Opinions

Gehl, J.

Frank Goffin, a building contractor with thirty years’ experience, testified that if the house had been as represented “there would have been no trouble getting from $6,500 to $7,000” for it. In answer to the question, “You would say $6,500 would be a fair market price, fair value for that house?” he replied “Yes.” His answer to the latter question must be accepted as his opinion, for it suggests the value properly to be considered, market value. He testified that in his opinion the actual value of the house “would be $4,500. That would be top and I don’t think you could get it with those conditions.” He also testified that considering the condition of the house its actual value is $4,000. This testimony is the only evidence in the record which bears upon the measure of damages to be applied in a case such as this.

“The general rule is that a defrauded vendee, by way of damages, is entitled to the difference between the value of the thing as represented and the actual value. That is the rule adopted by this court.” Mueller v. Michels, 184 Wis. 324, 343, 197 N. W. 201, 199 N. W. 380.

There was therefore a spread of between $2,000 and $2,500 in the testimony as to difference in value,’and a finding of any amount between those estimates would have found support. One made below $2,000 would not; that made does not, and is excessive by $500, an amount easily determinable.

It has been held by this court that where the jury returns an excessive verdict {he court may deal with the matter and reduce the award if the error of the jury is attributable to perversity or the amount found is not supported by the evidence. Urban v. Anderson, 234 Wis. 280, 291 N. W. 520. Where either appears the court may extend to the plaintiff a new trial or give him the option to remit the excess. We do not find that in any case has it been held that such action may be taken for any other reason or upon any other ground.

There is nothing in this case to indicate perversity on the part of the jury. It did not so appear to the trial court. The reason given for the reduction is that the damages “are excessive and that the least amount that the jury could have found on the evidence herein, legally admissible, based upon the testimony that the jury must have relied upon, would be the sum of $1,700.”

Under the circumstances, from the record, and in view of the rule stated, it appears, therefore, that the trial court substituted its judgment for that of the jury. It is recognized that the matter was addressed to the discretion of the trial court. The rule does not apply, however, where it appears, as it does here, that the court has proceeded upon an erroneous view of the law. Goelz v. Knoblauch, 242 Wis. 186, 7 N. W. (2d) 420.

That the court proceeded upon an erroneous view of the law appears from the reason given for its conclusion. It seems to be based upon the view that an award of $1,700 would have been permissible “on the evidence legally admissible.” Obviously the judge considered that the testimony of one witness that to put the house in habitable condition would cost $1,700 was legally admissible and that it would support an award in that amount. It may be conceded that evidence of the cost of repair was admissible, although there may be some doubt as to that, and we do not decide the question.

“Although, . . . the range of proof admissible upon an issue of fraud is broad, an important limitation upon the evidence admissible in a particular case confines the proof to the allegations of the pleadings and to the relief which may be granted in the action.” 24 Am. Jur., Fraud and Deceit, p. 102, sec. 266.

“The general rule which determines the admissibility of evidence of damages, which, of course, is applicable in determining the admissibility of evidence of damages sustained by fraud, operates to confine such evidence to proof of losses which is relevant and material in the assessment of damages under the principles which determine the measure of damages for fraud.” 24 Am. Jur., Fraud and Deceit, p. 116, sec. 277.

It does not follow, however, from the concession, that the court or jury may substitute a measure of damages for one which has been so clearly stated. The only purpose of the evidence as to cost of repair could have been to aid the jury in weighing the testimony given as to the proper measure of damages. It is worthy of note that they were instructed that they might take into consideration the evidence as to cost of repairs and that still they found damages in the sum of $3,000.

It is suggested that since we have permitted recovery for damage to automobiles upon both theories, cost of repair and difference in value, or have at least intimated that we might, Chapleau v. Manhattan Oil Co. 178 Wis. 545, 190 N. W. 361; Calumet Auto Co. v. Diny, 190 Wis. 84, 208 N. W. 927; Vetter v. Rein, 203 Wis. 499, 234 N. W. 712, we should not disturb the trial court’s conclusion. The answer to the suggestion is that in cases involving damage to automobiles we have declared an alternative rule. In an action brought by a defrauded vendee he may recover upon only one basis, difference in value.

The trial court should have applied the established rule that where damages found by a jury are excessive, it may-grant a new trial unless the plaintiff exercises the option given him by the court to remit the excess and consents to take judgment for the least amount that an unprejudiced jury, properly instructed, would under the evidence probably assess. Risch v. Lawhead, 211 Wis. 270, 248 N. W. 127; Asplund v. Palmer, 258 Wis. 34, 44 N. W. (2d) 624; Rasmussen v. Milwaukee E. R. & T. Co. 259 Wis. 130, 47 N. W. (2d) 730. Of course, the proper rule as to the measure of damages must be applied. We conclude that $2,000 is such least amount.

By the Court. — Order reversed for a new trial unless plaintiffs, within twenty days after filing of the remittitur in the court below, serve upon defendant’s counsel consent in writing to acceptance of judgment in their favor for the sum of $2,000. Plaintiffs to have costs on this appeal if they elect to accept the $2,000.