Lange v. Heckel

175 N.W. 788, 171 Wis. 59, 1920 Wisc. LEXIS 58

Opinions

The following opinions were filed January 13, 1920:

Owen, J.

It is the major contention of appellants that the verdict is not supported by the evidence. The gist of the action is embodied in the first question of the special verdict, by which the jury found that two or more of the defendants conspired to defraud plaintiffs by securing the land contract in question. The answer to this question was pursuant to an instruction that the burden of proof to support an affirmative answer was upon the' plaintiffs to establish the truth thereof' by clear and satisfactory evidence to a reasonable certainty. In view of the fraudulent object of the conspiracy, this was a correct statement of the degree of proof required of plaintiffs to establish their cause of action. Appellants challenge the sufficiency of the proof tested by this rule. The record has been-examined with care, and we are satisfied that the conclusion of the jury is neither rash nor hazardous, but, on the contrary, is a very natural inference to draw from all the facts and circumstances disclosed by the evidence. We scarcely need refer to the fact that. proof of conspiracy almost ex necessitate must rest upon circumstantial evidence. Conspiracy is a line of endeavor the success of which is not promoted by advertising. Direct proof of the illegal combination is generally locked within the breasts of the conspirators, and the ultimate fact of the corrupt agreement, if proved at all, must be inferred from-established facts and circumstances.

Examining the facts and circumstances supported by -the evidence, we find that the defendant Heckel was the owner of a store building in the village of Pulaski, in a more or less precarious state of repair and usefulness. He had been wanting to dispose of the property for some time, and had it listed for sale with the defendant Dominiczak, a real-estate agent, without results. Suddenly, on the morning of June 21st, so the evidence goes, Heckel told Dominiczak that if he did not sell or trade the property that day he would place it in the hands of another agent. This was a rather peremptory and brusque ultimatum, in view of the fact that there is a limited clientele for village property of this character. ITowever, Dominiczak accepted the challenge and got busy. He laid his plans for an intensive campaign. The Lange farm was his objective. Lange had never manifested a desire or disposition to trade his farm,' the only kind of property he had real use for, for a run-down village store building for which he had no use whatever. But the redoubtable Dominiczak was not dismayed. He laid out his campaign. He called Passowicz to his assistance. Passowicz was a farmer living between three and four miles from Pulaski. He sometimes dickered in real estate and had helped Dominiczak in a few deals. Dominiczak needed his help then. Passowicz testified: “Dominiczak told me. to come in. He told me ‘Heckel was going to trade the store.’ He says: T have a nice little farm;’ and he told me Lange’s place.” The record is silent as to the greetifig extended Passowicz upon his arrival at Pulaski, or as to--what instructions he received from Dominiczak; or the commission with which he was invested in carrying out the plan of campaign. That he was to play a responsible and important part in the offensive activities, however, may be inferred from the fact that he expected $75 for his day’s work and was subsequently paid $70. We can judge of the plan of campaign agreed upon only by the subsequent happenings of the day. It seems that it contemplated an offensive against the Lange farm and, by a skilful deploying and arranging of forces, such an investment thereof as to compel the beleaguered ones to capitulate upon terms to be dictated by the offensive forces. Along in the afternoon, while Mrs. Lange was “down town,” Dominiczak, casually like, dropped out to the Lange farm. He found Lange alone. In due course a trade was suggested. Lange was taken in the automobile and conveyed to town. They pulled up in front of a saloon. As a mere coincidence, Passowicz was there. Lange was taken inside and treated to whisky, one or two drinks. Mrs. Lange was found and the store was examined. They were told of its rental value and that they could make more out of the rent of the store than they could on the farm. Heckel appeared on the scene and talked trade with Lange. Lange wanted $1,000 to boot. Heckel said he would have to come down to $500. Whether he did or not is a matter of dispute. Anyway, Pleckel wanted to see the personal property on the farm. Heckel, Dominiczak, Passozvics, and the plaintiffs got into the automobile to go and see the personal property. At least four quart bottles of beer were taken along. The Langes sáy there were more. Just what the order of eventuations was after reaching the farm is somewhat in dispute. But this is certain: Wolski, a notary public and conveyancer at Pulaski, was brought to the farm; the beer was all drunk; the contracts were signed; the boot money was stipulated therein at $500; a note for $500”was given by the Langes to Passowicz and Dominiczak, to be paid in the event of their backing out. That night Mrs. Lange waé so sick as the result of the liquor consumed that a doctor had to be called. The Langes claim that they wére so intoxicated that they did not know what they were doing; that they never agreed to trade for $500 to boot, and that they did not agree to pay $500 to Passozvics in case they backed out, and, in fact, did not know that they had signed such a note. The Langes could neither read "nor write and their signatures to the instruments were evidenced by their marks.

The next morning Lange discovered the nature of the contract and, without losing any time, proceeded to Green Bay to see a lawyer. The vigilant Dominiczak discovered Lange’s movements and outdistanced him in a race to the lawyer. When Lange reached the lawyer, no advice, solace, or comfort was offered him. He was not told that Dom-iniczak had been to see him, or advised to consult another lawyer. He returned home. He found Mrs. -Passowicz already there, extending comfort and consolation' -to his distracted wife, and soon thereafter the ubiquitous Domin-iczak, with Heckel, appeared upon the scene. The purpose of the visit of Pleckel, Dominiczak, and Mrs. Passowicz, as well as the spirit in which negotiations were resumed, is clearly revealed by the testimony of Dominiczak. He said:

!!Mrs. Lange was in bed. She was not crying. I don’t think she was sick. It was just a make-believe. She was crying. I saw people cry that cry different from that. I think it was just a make-believe. About the-$500, Heckel says: 'As long as you don’t figure on making the trade, want to back out, you might just as well settle with me and pay me $500, because if you don’t I will sue you for it.’ ”

just what was said back and forth is not very clear, but the above testimony of one of the defendants may be relied upon to disclose their attitude. There is ample evidence for the conclusion that this unsophisticated old couple were cajoled and threatened with lawsuits and the loss of their farm, until, eventually, they gave their note for $300, secured by a mortgage on the farm, payable to Heckel, which Heckel sold and gave Dominiczak $150, $70 of which was paid to Passozvics.

We may concede, for the purposes of the argument, that these facts and circumstances do not warrant a finding that an express agreement was entered into between the defendants to defraud the Langes. But such an express agreement is not necessary:

“A mere tacit understanding between conspirators to work to a common purpose is all that is essential to a guilty, actionable combination. Individual intent by two or more persons to do an unlawful act or a lawful act by unlawful means is the first step in that regard. Next follows concurrence by such individuals, not concurrence of action, merely, . . . but concurrence in mental intent to effect the common purpose, each to aid the others in that regard. Mutuality in the undertaking may be secured without any express agreement and without a spoken or written word between the conspirators or a meeting of the members of the combine, or their, even, all knowing each other; or the precise thing to be accomplished or plans for its accomplishment, either in a general way or in detail, being distinctly stated by any member of the combine to any other member. If there is a meeting of minds, brought about in any way, to accomplish the common purpose, the essentials of a guilty combination are all satisfied.” Patnode v. Westernhaver, 114 Wis. 460, at p. 474 (90 N. W. 467).

The somewhat unusual ultimatum of Heckel to Domin-iczak to sell the property that day or he would place it in the hands of another agent, the calling of Passowicz to town, the selection of Lange as a likely customer, without prior negotiations or any prior indication that Lange entertained any thought of trading his farm for village property, the use of intoxicants, the misrepresentation as to the rent of the property, Lange’s proceeding to consult a lawyer as soon as he discovered the nature of the contract, Dominic-zak’s watchful vigilance upon Lange’s movements, the intuitive sensing of the nature of his errand to Green Bay, haste to frustrate his plans of securing legal advice, the timely call of Mrs. Passowicz at the Lange home, the immediate demand of settlement upon Lange’s return, although, by the terms of the contract, they had thirty days in which to close the deal, the most unusual circumstance of the $500 note payable to Dominiczak and Passozvicz in case of backing out, the fact that no effort was made to enforce the contract, together with a consideration of the ultimate result, by which the Langes were fleeced of $300 without a vestige of consideration moving to them, a division of the booty between the three defendants, — is all strongly persuasive of the conclusion that there was a tacit understanding between the defendants and a concurrence of mental intent on their part to effect the common purpose of defrauding the Langes by the procurement of the land contract in question. To our minds the verdict of the jury is abundantly justified by the evidence.

Lest it be thought that our treatment of the evidence is not entirely judicial and that we have indulged in fanciful inference.and innuendo, it should be remembered that the evidence must be given every legitimate construction most favorable to plaintiffs’ contentions, and we feel that the deductions we have made from the evidence are such as practical men of affairs might reasonably draw therefrom.

Before the trial Lange was examined adversely under the provisions of sec. 4096, Stats. Upon the trial Lange’s counsel offefed his deposition, given pursuant to such examination, in evidence, and the same was received, over objection by the defendants. Later plaintiffs’ counsel asked permission of the court to withdraw the deposition so read in evidence, which motion was granted, and Larige was placed upon the stand and testified. It is contended by the defendants that it was error to permit the reading of the deposition in evidence, which error was not cured by the fact that Lange was subsequently placed upon the stand. It is plain that the admission of the deposition in evidence was error. An adverse examination under sec. 4096 is not the taking of a deposition to be used as evidence upon the trial of the case. The object of such an examination is the obtaining of evidence for the party seeking the examination and against the party to be examined. It may be used in evidence by the party taking it against the party examined as original evidence of admissions made against the interest of the party examined. Meier v. Paulus, 70 Wis. 165, 35 N. W. 301. In this case it appeared that there was no reason why Lange could not be offered as a witness at the trial. As -a matter of fact he was offered as a witness after his counsel had become fearful that his adverse examination was not admissible. We hold that, at least under such circumstances, the adverse examination -of a party under the provisions of sec. 4096 is not admissible as evidence in his behalf upon the trial. Whether, if he were deceased, or for other reasons, his presence at the trial could not be secured, such an examination might be read in evidence, is not here involved and is not here decided.

The question now arises whether the withdrawal of the adverse examination or deposition, and the subsequent testimony of Mr. Lange upon the trial, cured the error of its admission. The rule obtains in this court that a reversal will not result from error occurring in the admission of evidence, or otherwise, unless it appears that a result more favorable to the appellant might probably have prevailed had the error not occurred. Bell v. Milwaukee E. R. & L. Co. 169 Wis. 408, 172 N. W. 791; Braun v. M., St. P. & S. S. M. R. Co. 170 Wis. 10, 172 N. W. 743. In order to justify a reversal of the case because of this error there must be some reason to suppose that had the adverse examination not been read in evidence a different verdict would have been returned. No effort is made on the part of appellants to point out any discrepancies between the evidence given by Mr. Lange upon the trial and that given in the adverse examination, to indicate that the jury might have been unduly influenced by the reading of the adverse examination in evidence. Unless by reading the adverse examination to the jury evidence of a persuasive character was placed before them which was not brought to their attention in any other way, or which Mr. Lange failed to testify to upon the trial, it is not apparent how the verdict of the jury could have been prejudicially influenced. No claim is made that the testimony of Mr. Lange upon the adverse examination was materially different from his testimony upon the trial. The appellants had full opportunity for cross-examination if such discrepancy did occur, and it is quite plain that some such ■ incident should .be pointed' out if the case is to be reversed for that error, under the rule obtaining in this court above stated.

The defendants requested the court to include in the special verdict questions tending to elicit the character of the fraud perpetrated by them upon plaintiffs in the procurement of the land contract, such questions requiring the jury to find whether the defendants caused plaintiffs to become so intoxicated that they were incapable of making the contract in question; whether the contract and notes were .procured by reason of such intoxication; whether they fraudulently made the contract and notes so as not to contain the oral agreement of the parties, by providing for the payment of $500 in case of withdrawal, and by making the amount of the boot money $500 instead of $1,000. It is the contention of the defendants that they have a right to know whether the jury united in convicting them upon any one of these alleged charges, and they point-out that some of the jury might have been of the view that the fraud consisted in inducing the intoxication of the plaintiffs, while others might have thought that it resulted from their infidelity in reducing the oral agreement to writing. There would be much force in this contention if it were not for the fact that the conspiracy of which they were convicted by the verdict of the jury is a conspiracy to defraud.- It is a “conspiracy to do an unlawful act, namely, to defraud the plaintiffs. The result of their operations having accomplished this purpose, the question of the steps taken and the methods pursued in the course of the conspiracy, 'which was an unlawful one, is immaterial, and we think the trial court properly declined to include the questions requested in the special verdict.

Exception is also taken to certain instructions given by the court in connection with the fifth question of the special verdict; to wit: Was the giving of the $300 note and mortgage in question agreed- upon by the plaintiffs as a settlement in full of the cause of action? We do not think this question had any place in the special verdict. The first four questions made a complete case against the defendants. The cause of action resulting from the facts and circumstances found by such first four questions manifestly could not be settled by the giving of the $300 note and mortgage. The giving of that note and mortgage was the ultimate fruits of the conspiracy and they were the immediate instruments which brought damage to the plaintiffs and made their cause of action complete against the defendants. Of course it was the defendants’ theory that the giving of the $300 note and mortgage was a settlement by the plaintiffs for their breach of the land contract. That idea, however, is completely negatived by the answer to the fourth question of the special verdict, where it is found that the defendants, in carrying out their conspiracy and in furtherance of it, secured from the plaintiffs the $300 note and mortgage in question. For this reason we find it unnecessary to consider whether the court properly instructed the jury in submitting the fifth question of the special verdict. ■

Judgment was rendered upon the special verdict in the sum of $469. It is claimed by the appellants that there was no warrant for rendering judgment in this amount. It will be noticed that the special verdict does not determine the damages sustained by the plaintiffs, and we confess that we were somewhat concerned as to the manner in which the amount of the damages was arrived at until we found, by reference to page 136 of the record, that this amount was practically agreed upon in open court by the attorneys for all parties. In view of this circumstance, appellants are in no position to question the amount of the damages.

We find nothing further requiring comment.

By the Court. — Judgment affirmed.