Opinion
November 6, 1941 —
December 2, 1941.
APPEAL from a judgment of the circuit court for Milwaukee county: OTTO H. BREIDENBACH, Circuit Judge. Reversed.
Adolph G. Schwefel of Milwaukee, for the appellants.
For the respondent there was a brief by I. A. Dinerstein and Irving A. Lore, both of Milwaukee, and oral argument by Mr. Lore.
Action begun January 13, 1941, by Better Properties, Inc., a Wisconsin corporation, against Edward and Pauline Kocher to cancel the waiver of lien alleged to have been obtained by fraud and to recover an amount claimed to be due for repairing defendants' house. Judgment for plaintiff. Defendants appeal.
The complaint alleges the existence of a contract under which defendants agreed to pay $1,263 for certain work on their real estate; that plaintiff has performed; that in payment defendants induced plaintiff to accept a certificate of paid-up stock in the Mutual Building Savings Association by representing that the said certificate had the "present cash value of $1,125;" that in truth and in fact the representations were false and fraudulent; that defendants knew they were false and that they were made with intent to defraud and to induce the plaintiff to execute a waiver of lien; that plaintiff believed and relied on said representations as to the present cash value; that the stock was worth but $6 per share and the total value was only $270. The answer denies any fraud or representation as to present cash value and alleges that the certificate was exhibited to plaintiff before the acceptance; that plaintiff had full knowledge of the value thereof and accepted the same at its face value. Testimony of witnesses varied as to the worth of the stock from a small amount to par, depending on whether the estimates were based on "liquidity" or the cash that would eventually be realized upon the final disposition of the real estate back of the certificate.
The case was tried to the court and jury. After the taking of testimony had been completed the trial court ruled that there was no evidence of fraud. A motion by defendant for judgment dismissing the complaint was denied. The record shows submission to the jury of the following questions, each of which was answered "No."
"Question 1: At the time of the execution of the contract on November 22, 1940, was it the intention of the parties that Building Loan stock was to be taken in payment or partial payment only to the extent of its then fair market value?
"Question 2: At the time of the delivery of the stock in partial payment of the indebtedness of the defendants to plaintiff, were the parties mutually mistaken as to the then market value of the stock?"
The court upon motions made after verdict changed the answers to those questions from "No" to "Yes," and decreed that the plaintiff have judgment for the balance due upon the contract, to be limited, however, to $900, this amount being computed on the basis of $80 per share of the stock. The stock was required to be returned to defendants and plaintiff's lien rights were restored. This appeal is from the judgment accordingly entered.
The complaint charged defendants with fraud and misrepresentation in inducing plaintiff's acceptance of the certificate of stock at its face value. The evidence did not show the existence of any fraud. The complaint was not formally amended setting out a cause of action based on contract or mutual mistake, but the trial court submitted to the jury the two questions quoted above. The testimony of the witnesses sustains the answers of the jury. From the evidence it clearly appears that when plaintiff solicited the work its agents were told that the defendants had no ready cash and were not contemplating any improvement of their real estate. Plaintiff was told that all the money defendants had was "tied up." The response of plaintiff was by way of a question as to why the money was not available. There was an explanation of the situation as to the resources of the defendants. Plaintiff's agent was told by Pauline Kocher that her husband was an old man, that he could not work any longer, and that all they had aside from assistance from a daughter was the home and the certificate of stock. The certificate was exhibited to the plaintiff upon its request and taken by its agent who showed some familiarity with the association whose stock was represented by the certificate.
Pauline Kocher testified concerning the conversation with plaintiff's agent as follows: "He says he takes. He says `If you aint got no money —' My money is tied up. Where? I says `In the Building Loan.' So I told him. `What kind of Building Loan?' I says `Mutual, by Crowley, we took them.' He says `That is good Building Loan.' We know that. `We will take it. How much have you got?' I says `All we have got that belongs to us is $1,125.' He says couldn't he see it? My daughter got it. This was on Friday, my daughter got it on Monday and on Tuesday morning he came to see it." There is further testimony that she showed the certificate to plaintiff's agent, that he read it over and took it with him, returning it later. When the work was finished the plaintiff accepted the certificate, credited the defendants with $1,125, and received from defendants $138 in cash. A receipt in full and waiver of lien were given. The testimony just referred to is not seriously in dispute and fairly discloses the negotiations between the parties. Therefore, the question as to how much could be raised by the immediate sale of this stock is not the determining question in this case. Although not readily convertible into cash, the certificate is shown by the evidence to be secured by valuable property. The plaintiff's acceptance of the certificate of stock with a face value of $1,125 and $138 in cash and acknowledgment of it as full payment for a debt of $1,263, manifested an intention to take $1,125 in building and loan stock. That brings this case within the rule of Noonan v. Ilsley, 17 Wis. *314.
The jury's determination set forth in its answer to the first question was an acceptance of the defendants' version of the contract. It says in effect that the certificate was to be accepted as payment or partial payment to the extent of its face value and not "to the extent of its then fair market value." That conclusion is consistent with and sustained by the finding under the second question that the parties were not "mutually mistaken as to the then market value of the stock." The trial court apparently was impressed with the idea that the defendants had received a valuable service from the plaintiff and that the stock was fairly worth $80 a share. He said: "Plaintiff is entitled to judgment against the defendants for the balance due upon the contract, to be limited, however, to $900, this being amount computed on the basis of the stock at $80 per share."
We conclude that a jury question was presented. The rule is that where reasonable minds could differ on the evidence presented or on the inferences that could be drawn from that evidence, a jury question exists. There being credible evidence which in a reasonable view fairly supports or admits of the inferences drawn by the jury, its verdict should not have been upset. Trautmann v. Charles Schefft Sons Co. 201 Wis. 113, 115, 228 N.W. 741; Gumm v. Koepke, 227 Wis. 635, 638, 278 N.W. 447; Jensen v. Jensen, 228 Wis. 77, 81, 279 N.W. 628.
By the Court. — Judgment reversed, and cause remanded with directions to reinstate the answers of the jury to the questions of the special verdict and to enter judgment dismissing plaintiff's complaint.