Rule v. J. L. Gates Land Co. ( 1904 )

WiNsnow, J.

The issues presented by the pleadings in the case were, in substance: (1) Whether Manning & Sabin made the agreement with the plaintiff alleged in the complaint; and (2) whether they had any authority to bind the defendant by such an agreement. The court found that the agreement was made by Manning & Sabin, but that it was induced by a false representation of fact made by the plaintiff, and hence that plaintiff was not entitled to recover thereon, and rendered judgment for the defendant without passing upon the question of the authority of Manning & Sabin to bind the defendant by such agreement The plaintiff truly says that the pleadings did not present the issue of fraud in the making of the agreement, and he argues that the judgment should be reversed because the real issues in the case have not been disposed of.

The findings of the court are amply sustained by the evidence, and there can be no doubt that, if the plaintiff represented that he had brought the prospective purchasers to Ladysmith for the purpose of buying land, when in fact he had nothing to do with their coming, and the contract to pay him ten per cent, of the price of all lands which they bought ■of defendant was-made in reliance on the truth of such state-meat, then the contract is yitiated by the materially false statement o-r representation on which it was based. While this issue was not clearly presented by the pleadings, all the testimony pro and con. was introduced without objection. The issue seems to have been fully tried by the parties, and all the evidence possible on the subject introduced. It would doubtless have been entirely competent for the court to have made the proper amendment to the pleadings so- as to conform to the facts proved. In such case, upon appeal, this court will consider that to have been done which ought or properly might have been done below, if it be necessary to support the judgment. Deuster v. Mittag, 105 Wis. 459, 81 N. W. 643.

By the Oourt.- — Judgment affirmed.