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is entered. Brown v. Brown, 53 Wis. 29, 9 N. W. 790; Hinman v. Paper Co., 53 Wis. 169, 10 N. W. 160; 1 Freem. Judgm. § 90; 1 Black, Judgm. § 305. Certainly there was no abuse of discretion in setting aside the judgment in the case at bar. The order of the circuit court is affirmed.

MENZ v. BEEBE et al.

(Supreme Court of Wisconsin. Dec. 16, 1898.)

1. On appeal from a judgment in an action tried by the circuit court without a jury, on exceptions to the findings of fact the evidence will be examined in respect to whether it sustains such findings, but error is presumed against, and unless clearly shown the decision of the trial court will not be disturbed.

2. Under the foregoing rule all fair doubts are to be resolved in favor of the decision rendered below; and the distance between clear preponderance of evidence on one side of a controversy and preponderance on the other is so great that the decision below on a question of fact is not easily or frequently disturbed.

3. When a person falsely represents the character or value of property for the purpose of inducing another to part with the same by a sale or exchange for other property owned by him, and relying thereon such other makes the sale or exchange, he may rescind the transaction within a reasonable time after discovering the fraud, by returning or offering to return what he receives, and compel a restoration to his former situation.

4. In case of a rescission of a fraudulent transaction as stated, the fraudulent vendee becomes a trustee for his vendor and liable to account for all property received from him; and in case he is unable to restore all the property, then to account for the value when obtained, of that which he cannot restore, with interest; or if he has sold it for more than its fair value, then to account for the amount so received, with interest, the rule being that the fraudulent vendee has no right to profit by his fraud.

5. Though costs in an equity case are in the discretion of the court that means a legal discretion, not mere arbitrary judicial will; and unless a person has been called into court by another or prejudiced by him in some way in the action, there is nothing for the discretion of the court to act upon in mulcting such other in costs. (Syllabus by the Judge.)

Appeal from circuit court, Dane county; R. G. Seibecker, Judge.

Action by Charles Menz against Charles A. Beebe and another. Judgment for plaintiff, and defendant Beebe appeals. Affirmed in part and reversed in part.


This action was brought to rescind an exchange of real estate made between plaintiff and defendant Beebe, on the ground of fraud, and for appropriate relief restoring plaintiff to his former situation. Defendant Bohn was made defendant as a purchaser from Beebe, with notice of the fraud complained of. answered denying bad faith on his part and claiming to be a bona fide purchaser. Beebe answered, and the issues of fact raised by the pleadings were decided by the court substantially as follows: Plaintiff was the owner of 77 N.W.-58

120 acres of land known as the "Sun Prairie Farm," and certain other real estate, and some personal property described in the complaint, situated in Dane county, Wis., the real estate being worth $5,600, incumbered for $2,950, and the personal property being worth $1,093.55. Defendant Beebe owned a tract of land in the state of Tennessee consisting of about 323 acres, worth $646. Plaintiff was an uneducated man, weak in mind and body, his condition being such that at intervals he had the appearance of being confused and unable to comprehend the relation of things. He was a simple-minded man, of confiding disposition, and was weak in mind and body, as stated, during all the times mentioned in the findings. October 5, 1894, while plaintiff and Beebe were circumstanced, and the conditions existed, as stated, the latter, for the purpose of inducing the former, who knew nothing of the facts, to trade the Dane county property for the Tennessee property and $200, knowingly and falsely represented that the latter was heavily timbered, valuable for farming, and worth from $15 to $20 per acre. Upon the faith of such representations, and not otherwise, plaintiff agreed to make the exchange as proposed by Beebe, and accordingly, on that day, proper instruments were duly executed; those transferring the Dane county property to Beebe were duly delivered and properly recorded. Thereafter the parties together visited Tennessee, and there, on the 13th day of October, 1894, plaintiff still having no personal knowledge of Beebe's property, but relying on his representations as to its value and character, and not otherwise, accepted the deed thereof, and thereafter caused the same to be properly recorded. The representations made by Beebe as stated were false, there being very little timber on the land, and none of value, and the land being unfit for cultivation and not worth to exceed two dollars per acre. Plaintiff did not comprehend how he had been deceived and defrauded by Beebe till shortly before the commencement of this action, and upon his understanding the situation in that regard he demanded a rescission of the whole transaction, offering at the same time to fully restore Beebe to his former situation. Beebe paid the incumbrances on the Dane county land, mortgaged the farm for $3,000, and contracted in writing to sell the same to defendant Bohn for $6,000, $500 of which was paid down and the balance in 15 years absolutely, the net receipts of the farm in the meantime, to be applied annually on the purchase money, and the deferred payments to bear interest at the rate of 6 per cent. per annum payable annually. Bohn acted in good faith, without notice of any wrong to plaintiff in his transaction with Beebe. Beebe received on the land contract before this action was commenced, in ad dition to the down payment of $500, two installments of interest of $330 each, and after the action was commenced, upon a third installment of interest falling due, Bohn depos

ited it in the Deerfield Bank for the use of whomsoever the court in the action should deIcide was entitled thereto.

On the facts above stated the trial court decided that plaintiff was entitled to a rescission of the land trade, to have all the instruments made to effect such trade adjudged void, saving only the rights of Bohn and the mortgagee, the judgment to be so framed as to devest and revest the titles accordingly, judgment against Beebe for $1,093.55 worth of personal property received by him of plaintiff and $1,160 received on the Bohn contract, less $200 received by plaintiff on the land trade, making in all $2,053.55, and in addition thereto interest on the sums mentioned from the time Beebe received the same, and to judgment awarding plaintiff the special deposit of $330 and costs against Beebe. The court further decided that Bohn should recover costs against Beebe. Exceptions were filed to the court's finding and conclusion. Judgment was rendered in all respects according to the foregoing, from which Beebe appealed.

G. S. Martin and Bushnell & Hall, for appellant. Geo. W. Bird, for respondents.

MARSHALL, J. (after stating the facts). There is no question of law presented for consideration in this case. No claim is made but that the findings of fact support the conclusions of law, and, in the main, that the conclusions of law support the judgment, the only contention as regards the last proposition being that some errors were made in the accounting between appellant and plaintiff, and that costs should not have been awarded to Bohn against appellant. From this statement of the situation it will be seen that the burden of appellant's argument is to show that the trial court should have found differently on the facts, and to that end the learned counsel for appellant have, at great labor, prepared and presented here a printed book of 324 pages, which has been examined with all the care that should be bestowed upon the case in order to properly review so much material and determine where the truth lies, without being able to discover with clearness wherein the learned trial court erred as to the facts. It should not be forgotten that this court does not try causes de novo, in the strict sense of the term, even where they were tried below without a jury; that the evidence is not examined and weighed with the degree of exactness required in trying a case originally. While it is true that on an appeal in an equity case, or one tried by the court without a jury, the evidence is to be examined and weighed, where errors are properly assigned on proper exceptions, at the same time error is presumed against and the findings cannot be disturbed unless clearly against the preponderance of the evidence. Stanhilber v. Graves, 97 Wis. 515, 73 N. W. 48; Clausen v. Hale, 96 Wis. 100, 71 N. W. 122; Momsen v. Plankinton, 96 Wis. 166, 71

N. W. 98; Magee v. Logging Co., 95 Wis. 377. 70 N. E. 1135. It seems a work of supererogation to call attention to a rule that has so long been given the significance that attends its reiteration in opinions filed at nearly every sitting of the court for many years. We repeat what was said quite recently,-such rule does not appear to be appreciated by many even who are learned and worthily eminent in their profession. That great earnestness to serve clients, and long-continued mental effort to see a proposition in a particular way should bias the mind and render difficult the duty of facing the record as it is, and seeing things from the standpoint of impartiality necessary to determine with some degree of certainty the probable result of subjecting the record to the test of impartial judicial examination under the rules governing it in an appellate court, is most natural. To do that it must not be lost sight of that there is a wide range between clear preponderance of evidence on one side of a controversy and preponderance on the other; that it is so wide that when all fair doubts are resolved in favor of the facts as determined by the trial court, necessarily the cases are few where this court can properly disturb such determination.

We do not deem it advisable to quote here the evidence from the record which influences us to the conclusion we have reached. It is very voluminous. We could not quote from it at all with any satisfaction without greatly burdening the opinion with matter that would be of no benefit in future cases. To our minds the evidence is ample to sustain the decision of the learned circuit court, that plaintiff was a weak, simple-minded man; that Beebe was right the reverse; that he secured the confidence of plaintiff and falsely represented the Tennessee land both as to character and value in order to secure therefor, from plaintiff, some over $3,000 in value of property, for property worth between $800 and $900; that the scheme, without fault on plaintiff's part, succeeded, and that plaintiff commenced this action to avoid the transaction within a very short time after he comprehended the fraud that had been perpetrated upon him. The case is complete on the facts found, and the evidence to sustain such facts appears to be very strong and convincing.

It is contended that the relief granted is excessive, but the reason assigned for such contention shows, as the fact is, that the decree only required the appellant to restore what he obtained from plaintiff so far as it was in his power to do so, and to respond in money for such portion of the property obtained from plaintiff as he was unable to restore. The title to the Sun Prairie farm was revested in plaintiff subject to the contract with Bohn, and appellant was required to pay to plaintiff the sums he had received on such contract with interest. He was also required to restore the personal property by paying to

plaintiff the value of it at the time the trade was made, less the $200 plaintiff then received, with interest. No account was made

of interest and taxes paid by Beebe on the one side, or the use of the Dane county land on the other, which fairly offset each other. That appears to be in exact accordance with the repeated decisions of this court heretofore made, as is well said by counsel for respondent. Cole v. Getzinger, 96 Wis. 559, 71 N. W. 75; Swihart v. Harless, 93 Wis. 211, 67 N. W. 413; Porter v. Beattie, 88 Wis. 22, 59 N. W. 499. The rule is elementary that a court of equity, having jurisdiction to rescind a sale of property on the ground of fraud, and to restore the parties to their former situation, may, where such restitution cannot be accomplished by reason of the defendant's conduct, so shape the decree as to require him to make compensation in money in lieu thereof, and that compensation may reach so far as to include the value of all property that cannot be restored, or that which the wrongdoer may have received therefor, with interest. If it appears that he received more for the property than it was worth when obtained by him from the injured party, the whole amount must yet be considered as belonging to the injured party. The wrongdoer cannot rightfully obtain any benefit from his wrongful conduct. Board v. Hackett, 21 Wis. 613.

The transaction in this case having been rescinded, the wrongdoer immediately became a trustee for plaintiff of all of the property the latter conveyed to the former, and liable to account therefor in specíe so far as possible, and for the proceeds of such as had been disposed of in the meantime, or the reasonable value of such property if placed beyond the reach for less than its fair market value. And in addition interest may properly be added.

The judgment in this case was framed on the lines indicated, and is right, tested by principles so well established as not to require extended discussion to show either their existence or the applicability to the facts.

On the subject of whether the trial court was right in rendering judgment for costs against appellant in favor of Bohn, the former must prevail. True, costs may be allowed in a case like this in the discretion of the court (Rev. St. 1898, § 2918), but, as said in Spengler v. Hahn, 95 Wis. 472, 70 N. W. 466, the discretion mentioned means something more than mere arbitrary judicial will. In some way it must appear that the person awarded costs has been called into court, or put to expense, or prejudiced in the action by the act of another, against whom the costs are awarded, else there is nothing for the discretionary power of the court to act upon in saying that such other shall thus respond to such person. Appellant did not cite Bohn to appear in court or make any claim in the action adverse to him. On the contrary, the position of one was identical with that of the other so far as Bohn's rights

were concerned. It was plaintiff who cited Bohn to appear, and on a charge that he was a participant in Beebe's fraud. That Bohn denied. The charge made by plaintiff and the denial by Bohn was the issue for trial between them. On that issue Bohn prevailed and he was clearly entitled to costs against plaintiff as a result, not against Beebe.

The result of the foregoing is that appellant must prevail as to defendant Bohn, but not otherwise. The charge for printing justly chargeable to that branch of the appeal, and recoverable by appellant against Bohn in this court is fixed at $15. The judgment appealed from as to Menz is affirmed, but as to costs in favor of Bohn it is reversed. Full costs are allowed to respondent Menz against appellant, and the latter is allowed attorney's fees and $15 for printing against respondent Bohn.

So ordered.


1. When a person makes representations as to the ownership of property for the purpose of in ducing, or with knowledge that another may probably be induced, to act on the faith of such representations by commencing an action and incurring costs in respect to such property, such circumstances are evidence against such person as to where the truth lies in respect to the title, but have not the conclusive effect of an estoppel in pais.

2. Though a gift of property used in a going business be fraudulent as against existing creditors of the donor and against subsequent creditors as well, if the donor continues in possession with the consent of the donee, conducting the business so as to induce others to act on the theory that no change has taken place, the title of the donee cannot be challenged by a person who has not parted with property on the faith of such appearances or been prejudiced other than by incurring costs by an action in court.

3. Where the only claim relied upon for recovery below is estoppel or fraud, locating the title in one as to his creditors though it be in fact in another, and there be a decision in that regard adverse to the claimant, if, on an appeal, such decision be sustained, the judgment will be affirmed even though the record disclose that there was evidence affecting the title on some other grounds.

(Syllabus by the Judge.)

Appeal from circuit court, Outagamie county; John Goodland, Judge.

Action between Mary Frei and Robert McMurdo, sheriff. Judgment for plaintiff. Defendant appeals. Affirmed.

Action of replevin to recover some stock in trade of a pickle factory operated as the M. R. Frei Pickle Works. Whether the owner of the business was the plaintiff or her husband, M. R. Frei, was the question in controversy. The property was seized on an execution against the property of M. R. Frei. The evidence was to the effect that

M. R. Frel built the pickle factory on real estate belonging to his wife and operated it several years in the name of M. R. Frei Pickle Works. At a time where there was little or no stock on hand, Frei caused the title to a lot of land owned by him to be vested in his wife and turned the pickle business over to her with the understanding that thereafter he would attend to it as her agent and continue it the same as before, but as her enterprise. After that the parties borrowed $1,000 on the real estate on which the factory was situated and the lot formerly owned by M. R. Frei, and gave their joint notes therefor. What was done with the thousand dollars does not definitely appear. While the works were being run under the new arrangement, the concern became indebted to Otto H. Fisher for some barrel stock, and while such indebtedness existed E. F. Below, a creditor of Fisher, sued him and garnished M. R. Frei, he having shortly before represented to Below, in the presence of Mrs. Frei, that he was operating the pickle works as formerly, and thereby induced Below to believe that the M. R. Frei Pickle Works meant M. R. Frei. Such proceedings were duly taken in the garnishee suit that judgment was rendered for Fisher without contest, and therefore some of the pickleworks stock was seized by defendant on execution issued thereon, and the plaintiff replevied the same. The trial court directed a verdict for plaintiff, and judgment was rendered thereon, from which defendant appealed.

Hume, Oellerich & Jackson, for appellant. Whitman & Ryan, for respondent.

MARSHALL, J. (after stating the facts). It does not appear to be contended that the pickle works business and stock belonged to M. R. Frei, but that he was held out as owner by plaintiff, and upon the faith of such holding out defendant instituted the garnishee suit and prosecuted it to judgment, and that plaintiff was precluded by her conduct from changing her position and recovering on the truth as to the ownership of the pickle business. It is not claimed that defendant lost any right or was prejudiced in any way by the pretense on the part of plaintiff that her husband owned the property, except that the garnishee action was commenced and costs incurred therein. That was evidence against plaintiff's claim of title, not conclusive, however, so as to estop her from proving the truth and recovering in accordance therewith. These representations as to title or indebtedness, on the faith of which an action is commenced and prosecuted to judgment, do not work an estoppel in pais. Warder v. Baker, 54 Wis. 49, 11 N. W. 342. This is an exception to the salutary rule, of quite general application, that if a person takes a position for the purpose of inducing another to act in

a particular way, or with knowledge, or reasonable means of knowledge, that he will thereby be induced to so act, to his injury if such position be changed and such other does so act, such person is bound by the appearances which induced such action without regard to whether they represented the truth or not. So here, looking at the case most favorably for the appellant which the evidence will bear, the plaintiff was not estopped by her conduct from recovering on the true state of the title to the pickle-works stock. The reaction of plaintiff was not sufficiently injurious to Fisher to give to her previous conduct the conclusive effect of estoppel.

True, as indicated, representations made by plaintiff, or with her knowledge in her presence, and appearances for which she was responsible, inconsistent with her claim of title, was evidence bearing on the question at issue, but, though the assignment of error is broad enough to cover the subject, it is clear that it was neither claimed in the court below, nor is it claimed here by the learned counsel for appellant, that the circuit court should have left it to the jury to draw the proper inferences as to the title of the property in controversy from such evidence. The claim below and here, is that Below acted on the faith of the representations and appearances and was misled thereby and is therefore entitled to protection by the law of estoppel in país. On this, as we have seen, the court below decided right, and that renders it unnecessary to consider the ruling excepted to, as to the insufficiency of the plea of estoppel, and some rulings excluding evidence bearing on the subject.

It is contended by the learned counsel for appellant that the evidence shows the transfer to plaintiff was a mere gift and void as to creditors, and further that the evidence tended to show that the whole proceeding of placing the property in plaintiff's name was fraudulent not only as to existing, but subsequent creditors, and that the case should have gone to the jury on that question. The conclusive answer to that is, that Below was not a creditor who parted with property or anything of value, except costs as before said, on the faith of a belief as to M. R. Frei's ownership of the pickle business, so was in no position to impeach plaintiff's title on the ground of fraud any more than on the ground of estoppel. The parties to the cause were so circumstanced that the sole question was, Who in fact was the owner of the pickle business, plaintiff or her husband? As no claim was made in the court below that the case should have been submitted to the jury to find on the evidence on that question, and the rulings of the trial court were right on the questions calling for a decision by the attitude of counsel, there is no reversible error in the record.

The judgment is affirmed.


(Supreme Court of Wisconsin. Dec. 16, 1898.) On Rehearing. Denied.

For prior report, see 77 N. W. 174.

MARSHALL, J. A motion for a rehearing made by respondent has been carefully considered, without effect, other than to confirm the views expressed in the opinion on file. 77 N. W. 174. Counsel, in presenting the matter, indulged in some intemperate language, bordering, at least, on discourtesy, and meriting some rebuke in disposing of the motion. The high regard entertained for them here, as gentlemen distinguished in the profession, and of care in observing the ethics of their calling, enable us on this occasion to excuse their intemperate words, considering them as used without deliberation or bad intent, but impulsively, under the sting of disappointment at an unlooked-for result in a matter of deep professional interest to them and pecuniary interest to their client. Counsel should be comforted in such situations, by the reflection that courts do not make the law, and that the safest judicial system for all, and the one which, in the long run, best protects the most valuable personal rights of property, particularly as to the weak and humble, is one where courts may be depended on to administer the law firmly, according to the intent of its creators, as written in the books, even though, in an individual case now and then, some hardship may result. Ideal justice stands high above all fear or favor, testing rights by the law as it is believed to be written, with eyes blinded to consequences which courts cannot consider, though human sympathies, possessed by judges in as high degree as other people, be touched thereby most deeply. It is not improbable that such sympathies are often most deeply touched in situations where there can be no possible relief by following the leanings they tend to influence.

We are asked to reconsider this case in the light of Mills v. Insurance Co., 92 Wis. 90, 65 N. W. 730, the theory being that the holding there was overlooked here, and was overruled without direct reference to it. It was neither overlooked, nor was it overruled, as the court then viewed and now views the matter. If it had been supposed there was any conflict between the two decisions, the subject would certainly have been referred to in an unmistakable way; but it was not so supposed, and no such conflict is perceived now. That a situation may appear different when viewed judicially, from when looked at on the bias from the standpoint of a partisan, is what we meet at every turn in official life. If that were not so, there would be much less use for courts.

A careful, dispassionate review of the very brief opinion of Mr. Justice Newman in the

Mills Case, will disclose that the only point decided was that an irregular notice of trial is waived by going to trial on the merits. True, as appears from the statement of facts, one of the objections raised to the notice of trial was that the costs in the supreme court had not been paid, yet the situation, when there was a mere premature notice of trial, was what the court considered, and the point thus raised, what the court decided. That not only clearly appears by the opinion, but by the authorities cited therein. There was no objection to the trial itself, except incidentally, by the objection to the notice of trial made on two occasions, first to placing the cause on the calendar, and second, by moving to strike it from the calendar. This court held right, that the mere placing of a cause on the calendar, improperly, is an irregularity which is waived by going to trial on the merits. Such is Mills v. Insurance Co. In this case, if counsel for appellant had relied on a mere objection to the notice of trial, as premature, the result would have been the same as in the Mills Case. It is by no means certain that failure to pay the costs before notice of trial, in a case circumstanced as this was, would be even an irregularity. It is not the payment by the losing party, of costs adjudged in this court, before he can notice the cause for a new trial below which is the real condition required by the statute; it is the payment of costs before trial. If paid after the notice and within the year it is not clear, by any means, but that the trial can then be had, subject to the discretionary power of the court to continue the cause on account of the late payment.

In this case, appellant's counsel, at the first opportunity, objected to the trial because of non-compliance by respondent with the statute in question, and moved for a stay of proceedings till the statute should be complied with. True, we said in the former opinion that a motion was also made to strike the case from the calendar on the same ground, which was denied, while the order of the lower court shows that such motion, though made, was withdrawn. But, looking at the bill of exceptions, which purports to give a history of what occurred, without reading the order, it fairly warranted what was said. The language is: "Defendant moved to strike such action from the calendar on account of plaintiff's failure to pay said costs, and further moved the court that proceedings in the action be stayed and that plaintiff be not permitted to bring said cause to trial until he pay said costs. The court overruled said motion." There is not a suggestion there of any withdrawal before the ruling, though, as said before, in the order it is recited that the objection to the notice of trial withdrawn; but we assumed, as we had a right to do, that the history of the matter outside the order was correct. But this is not material. We only refer to it, because of complaint by the learned counsel for re


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