Citation Numbers: 148 Wis. 168
Judges: Timlin
Filed Date: 1/30/1912
Status: Precedential
Modified Date: 9/9/2022
In the civil court for Milwaukee county a judgment was given against the defendant for $90 and inter
“Taken subject to acceptance by the Apierican Case & Register Company at home office. If not accepted, any money collected herein, together with any note executed, are to be returned to purchaser.”
It was averred that this contract was procured by fraudulent representations, and that the defendant revoked the offer before its acceptance by plaintiff, and there was a counterclaim for the $10 based upon rescission of the contract. The plaintiff offered the note with computation and rested. The defendant offered his own evidence and that of Dr. Oakland and one letter in support of his affirmative defense. The evidence is very meager. Upon appeal the circuit court, on the evidence returned,.reversed this judgment and gave judgment for the defendant for $10 and costs'. Erom an oral opinion delivered by the circuit judge it appears this ruling was based upon his belief that the written offer was revoked by defendant before its acceptance by plaintiff.
No actionable fraud is shown by the evidence. Assuming that defendant had the right of rescission at his pleasure at any time before acceptance by the plaintiff, which is as favorable as defendant can expect, is there sufficient evidence to establish a revocation by defendant before acceptance of the offer by plaintiff? Taking all the evidence together, it ap
“Q. Did you communicate with him once, or did you communicate only once that you refused to accept the cabinet ? Objected to, and objection overruled. A. I think I communicated once with their attorneys at Youngstown, Ohio. I think that’s the place, I am not sure.”
The plaintiff moved to strike out that part of the evidence relating to letters written as not the best evidence, but there was no ruling made on this motion.
It is not necessary to search afar for rules or principles determinative of this simple case. The execution and delivery of the contract, the note, and payment of the $10 was each a step in the making of a contract to be closed by the remaining step, namely, the assent of the plaintiff. Until such assent no contract was consummated and the defendant had a right to withdraw his offer, there being no other consideration given for the offer and no provision that it should remain outstanding for a definite or fixed time. But the unavoidable inference from the letter of August 20th, from the retention of the note and the $10, and from the shipment of the cabinet,
By the Court. — Judgment reversed, and cause remanded with directions as stated in the opinion.-