Swanke v. Herdeman , 138 Wis. 654 ( 1909 )

Dodge, J.

The record discloses evidence which would justify a jury in finding the making, the falsity, and materiality of the two alleged misrepresentations, namely, that the horse had been freshly imported from a well-known and responsible firm of dealers in Illinois and that he was sound in every respect and suitable for breeding' purposes. Indeed there is nothing to' indicate that the trial' court decided otherwise. The direction of verdict apparently was based upon the view that the defendants had not been diligent before signing the note to ascertain as to the falsity of such representations, and that they had not promptly exercised any right of rescission that they might have had after discovery of such falsity. Of course, to justify the court’s action, these facts must have appeared conclusively, and without any evidence ydiieh, iu any view thereof, and with most favorable intendments and inferences to the defendants, tended to prove the contrary. The character of the opportunity and the degree of diligence required of the purchaser of property in order to preclude belief in his reliance upon misrepresentations made by the seller has been so often discussed that no repetition is necessary. Jacobsen v. Whitely, ante, p. 434, 120 N. W. 285; and authorities there collected. Under the rule stated in that case the defendants are chargeable with knowledge only of such facts as were obvious to them in view of their capability to observe and the opportunities accorded them. With reference to the physical defects in the horse, while ascertainable by a careful inspection made by a skilled horseman or veterinary, there was much evidence of the incapacity of any of these defendants to observe and appreciate either the fact or the significance of the horse’s unsoundness, even had he been fully exhibited to them, and there was also much evidence of conduct on the part of the seller tending to delude and divert many of them from such inspection; also that this conduct was accompanied by the practical bribery of two or three of the ostensible share-takers upon whose judgment the others evidently relied to some extent, and whose favorable attitude toward the trade was thus influential, as it might be inferred that Keller well lmew and intended. These and the many other circumstances were in our judgment sufficient to raise a question of fact for the jury whether or not these defendants had such notice of the physical unsoundness of the horse or such opportunity for observation that they could not have been ignorant thereof without closing their eyes to plain facts. As to falsity of the representation of direct importation of the horse there is little, if any, showing of any opportunity to discover it before consummation of the sale. It was not until investigation was made, some twenty miles from where they resided, that the fact of previous use in the vicinity, or any suspicion of it, is shown to have come to the defendants.

Neither can we agree with the trial court that the evidence was conclusive of either an election to retain the horse or of unreasonable delay to notify the seller of defendants’ election to rescind after the discovery of the unsoundness. Certain physical infirmities were discovered by one of the defendants the day after the purchase; but whether they .constituted material unsoundness or merely some temporary illness and were immaterial could not at once be ascertained. Considerable time was necessary for him to communicate with the other defendants, and for them, in association, to obtain advice and information as to the character of these defects. Then, two or three days after the infirmities had come to the knowledge of the defendants, and within approximately two weeks after the transfer of the horse, they made up and appointed a committee who forthwith proceeded to investigate as to the history of the horse, and to that end made a trip to Tigerton, and thence to a neighboring town, to meet Keller, to whom they notified their desire to rescind, receive back their note, and give up the horse. Any delays thereafter were due to Keller rather thaq to the defendants. Meanwhile no use whatever was made of the horse. We are satisfied that a jury might well have concluded from all the facts and circumstances that no unreasonable delay had intervened such as would estop the defendants from their right to rescind, nor any ratification or affirmance of the sale.

Some technical insufficiencies in the tender of rescission and return, are urged hy respondent, hut evidence tended to show so categorical and absolute refusal by Keller to entertain the proposal at all that it might be reasonably inferred that any more complete tender would have been futile, and was waived.

As to the second defense, there was evidence tending to prove almost the identical situation discussed in Hodge v. Smith, 130 Wis. 326, 110 N. W. 192. Upon the authority' of that case, if the jury believed that these defendants or some of them were induced to sign this note upon the understanding that, although it remained in the hands of Keller to obtain other signatures, it was not to be delivered so as to take effect until signed by fifteen responsible signers, and that it had not in fact been so signed in good faith, then it had no effect or existence as a promissory note as against any of these defendants. Aukland v. Arnold, 131 Wis. 64, 111 N. W. 212. We have no doubt that there was evidence from Avhich a jury might have so found, and might also have found that there were no acts on the part of the defendants signifying an election to ratify the purchase after discovering the nonsignature or fictitious signature of the note.

The printed case on this appeal is an egregious infraction of Supreme Court Rule 6, providing that appellant “shall print a case containing an abridgment of the record, so far as necessary to present the questions for decision.” It is in no sense an “abridgment,” for the whole testimony is printed in extenso, question and answer, with all its needless and unhelpful repetitions, to the unnecessary extension of the case by nearly one half and to the very considerable aggravation of tire routine labors of this court. Rule 44 prohibits the allowance of any costs for the printing of such a case.

By the Gourt. — Judgment reversed, and cause remanded for new trial; no costs for printing case.