Opinion
May 4, 1949. —
June 7, 1949.
APPEAL from a judgment of the circuit court for Outagamie county: M. G. EBERLEIN, Circuit Judge. Affirmed.
The cause was submitted for the appellant on the brief of Bradford, Derber Gabert of Appleton, and for the respondent on the brief of Benton, Bosser, Becker, Parnell Fulton of Appleton.
Action begun November 29, 1945, by Joseph J. Engel, sole trader doing business as Joseph J. Engel Real Estate Agency, against John Van Den Boogart to recover commission under a real-estate listing contract. Judgment dismissing plaintiff's complaint was entered December 9, 1948. Plaintiff appeals.
Defendant, John Van Den Boogart, was the owner of a tavern in the town of Kaukauna. He was in poor health and wanted to move to California. In July of 1945, he and his wife made arrangements with the plaintiff, a realtor, to list the tavern for sale.
The listing contract, signed on July 23, 1945, provided:
"Exclusive Listing Contract
"Dated July 23, 1945
"In consideration of their agreement to list and to use their efforts to find a tenant or purchaser, I hereby give Joseph J. Engel, realtor, . . . the exclusive right to sell, rent or lease, the herewith described property:
"Boogarts tavern and equipment [written in longhand] for the amount of $19,000 or at any price and terms acceptable to me, and if sold, rented, leased or exchanged by the Joseph J. Engel Agency, by myself or any other person during the period of this contract, or within three months thereafter, I agree to pay the agency five per cent commission on the sale price-half of the first month's rent if rented, or five per cent of the gross lease rental if leased, and full sale commission if the property is purchased by the tenant at the end or during the rental period. I further agree to pay the Joseph J. Engel Agency the full sale commission if the property is purchased within one year from this date by anyone with whom the agency had discussed the property listed here . . . .
"This contract shall remain in force until October 23, 1945.
[date written in longhand]
"Name John Van Den Boogart (signed)
"Address . . . .
"Accepted by: Joseph J. Engel (signed) Joseph J. Engel Agency."Plaintiff brought this action on November 29, 1945, to obtain his commission under the contract.
The jury in a special verdict found, (1) that prior to the signing of the contract plaintiff falsely represented to defendant that the contract would be fully terminated at the expiration of ninety days; (2) that plaintiff made those false representations to induce defendant to sign the contract; (3) that defendant believed plaintiff's statements; (4) that defendant had the right to rely on plaintiff's representations; (5) that defendant by his conduct did not ratify the contract.
On December 9, 1948, the court granted judgment on the verdict in favor of defendant and dismissed plaintiff's complaint. Plaintiff appeals.
There is a sharp conflict of testimony in regard to the circumstances surrounding the signing of the contract. Plaintiff claims that he read the contract to both defendant and his wife, and then defendant's wife read it herself and told defendant it was "okay" for him to sign. Defendant testified that he could not read and that plaintiff did not read the contract to him. His wife claims that she did not read the contract either. Defendant has a second-grade education and his wife a seventh-grade one, and they testified that, even if they had read the contract, they would not have understood it.
Defendant claims that he wanted the contract only for ninety days, that he relied on plaintiff's statements that the contract was for that period of time, and that he signed it because he thought it was for that period of time.
In November, 1945, after the expiration of the ninety-day period on October 23, 1945, defendant rented the tavern to one Peter Berghuis who was interested in buying the property. The property was rented at that time because defendant's lawyer told him that under the contract he could not sell it, but later in March, 1946, it was sold to Mr. Berghuis. Evidently Berghuis heard of the defendant's property through plaintiff. The defendant, however, knew nothing of this and, in any event, the transaction between Berghuis and defendant did not take place until after the ninety days had expired. Defendant's attorney tendered plaintiff a check for one half of the first month's rent, which was in accordance with the terms of the contract.
Appellant objects to the evidence on which the case was submitted to the jury on the ground that it was not admissible under the parol-evidence rule. This is not an attempt to vary the terms of a written contract. The respondent is attempting to have the contract declared void because of fraud at its inception. He claims, and the jury has found, that he was induced to sign the contract by appellant's false representation that the contract would only run for ninety days. The evidence establishes circumstances sustaining the jury's finding. When it is claimed that a contract was induced by fraud, the parol-evidence rule does not apply, and the fraud may be shown. 2 Jones, Evidence (4th ed.), p. 826, sec. 435; Jones v. Brandt, 173 Wis. 539, 181 N.W. 813; Hurlbert v. T.D. Kellogg L. M. Co. 115 Wis. 225, 91 N.W. 673; Gross v. Drager, 66 Wis. 150, 28 N.W. 141. Therefore appellant's objection to the testimony was properly overruled.
The jury has found that respondent wanted the contract only for ninety days; that he relied on appellant's statement that the contract was only for that period of time; that in reliance on that representation he signed the contract; that he had a right to rely on those representations; and that he did not by his subsequent acts ratify the contract. The question is, then, Are the jury findings sustained by the credible evidence?
To constitute a fraud by false representation entitling the respondent to relief, there must have been a false representation which he believed to be true. It must appear that he relied upon it and was deceived thereby. It must also be shown that the representation was of some matter or thing relating to the contract about which the representation was made so that, if true, it was to the advantage of the party to whom it was made and being false caused him damage and injury. Byard v. Holmes, 34 N.J.L. 296; 37 C.J.S., Fraud, p. 215 et seq. The circumstances must go beyond merely warranting an assumption of fraud from mere obscurity or apparent error. Picot v. Bates, 47 Mo. 390.
Such fraud or false representation may be established by satisfactory proof arising from the circumstances or partly by the circumstances and partly by direct testimony or entirely by direct testimony. Bryant v. Simoneau, 51 Ill. 324; Hartsfield v. Crumpler, 174 Ark. 1179, 297 S.W. 1012; Florida East Coast R. Co. v. Thompson, 93 Fla. 30, 111 So. 525; 37 C.J.S., Fraud, p. 437, sec. 115.
The respondent insists that he never intended to commit the control of his property to appellant for any term exceeding ninety days. There is testimony, which the jury accepted as true, that he exacted a promise to that effect from the appellant. The jury also accepted as true respondent's testimony that he was induced by that promise to sign the contract.
The jury further found that the respondent had a right to rely on appellant's representations that the contract would only run for ninety days. In this regard our inquiry must be directed to what transpired at the time the paper containing the alleged agreement was signed by respondent.
There is a sharp conflict of testimony in regard to the conversation and the circumstances surrounding the signing of the contract. Appellant testified that he read the contract to both respondent and to Mrs. Van Den Boogart; that Mrs. Van Den Boogart read it herself and told respondent, who at least had great difficulty in reading, that it was "okay" for him to sign. This was denied by both respondent and his wife. Respondent testified that he could not read and that neither appellant nor respondent's wife read the contract to him. It does appear that respondent's school experience ended at the second grade. His wife attended school up to the seventh grade, and she testified that, even if they had read the contract, they would not have understood it. It also appears that directly above where respondent signed the contract was this sentence: "This contract shall remain in force until October 23, 1945." The date was written in longhand. This evidence alone might not have excused respondent from complying with the terms of the contract. But coupled with the claim, found by the jury to be true, of appellant's assurance that it was provided that the relation between the parties would not exist under the contract after ninety days from the signing of the paper, it is sufficient. Bostwick v. Mutual Life Ins. Co. 116 Wis. 392, 89 N.W. 538, 92 N.W. 246.
The only remaining question is whether respondent by his subsequent actions ratified the contract. Appellant's Claim of ratification rests on the fact that when respondent rented the property in November, 1945, his attorney tendered to appellant a check for one half of the first month's rent. This was in accordance with the provisions of the contract. Manifestly this act was not so unequivocal as to be one from which ratification would be implied as a matter of law. 5 Pomeroy, Eq. Jur. (4th ed.), p. 4758, sec. 2109. The question was properly submitted to the jury. Zeglin v. Tetzlaff, 146 Minn. 397, 178 N.W. 954. The jury found that this act did not constitute a ratification of the contract. The evidence warranted a finding that there was no intention to ratify on respondent's part. The circumstances are not sufficient, in view of the jury's finding, to hold that an offer to, pay a small sum was a ratification especially when the suggestion was immediately rejected and both parties resumed their original position. Neither party lost or gained any advantage. The acts of respondent with respect to a ratification are too meager to show a fixed determination to accept and be bound by the fraudulent representation. They are quite consistent with the idea of trying to compromise the matter or to buy his peace.
The evidence, controlling by virtue of the findings of the jury, is that respondent never intended to sign or ratify the contract as drawn, that he relied on appellant's statement that the contract was only for that period of ninety days, and, in reliance on the representation, he signed the contract.
The trial court fully appreciated the importance of a careful trial, of the issues and of the necessity of a careful analysis of the testimony relating to the probability of respondent's being imposed upon as well as that relating to the effect of his action after discovering the fraud. We do not find any prejudicial error in submitting the case to the jury.
By the Court. — Judgment affirmed.
HUGHES, J., took no part.