text:
    Purtell, d/b/a Edward A. Purtell Company, and another, Plaintiffs and Respondents, v. Tehan and wife, Defendants: Hack and another, Defendants and Appellants.

      January 7

    February 1, 1966.

      For the appellants there was a brief by Levin & Levin, attorneys, and James S. Levin of counsel, all of Milwaukee, and oral argument by James S. Levin.

    For the respondents there was a brief by Blumenthal, Herz & Scholl and Thomas G. A. Herz, attorneys, and Harold Harris of counsel, all of Milwaukee, and oral argument by Thomas G. A. Herz.

   Currie, C. J.

The issues on this appeal are:

(1) Is the allegation that “a listing contract” was entered into between Eugene Tehan and Purtell sufficient to permit such allegation to be construed as a valid real-estate broker’s agreement which contains the provisions required by sec. 240.10, Stats.?

(2) If the allegation with respect to the listing contract is held to be sufficient, do the allegations of paragraph 9 of the complaint spell out a cause of action against the two appellants, Hack and Sampson?

(3) May the agent Hack be sued inasmuch as the complaint discloses that plaintiffs knew he was acting as agent for his principal Sampson?

(4) May the dismissal of the second cause of action be considered in passing on the issue of whether the demurrer should be sustained to the first cause of action?

Allegations With Respect to Listing Contract.

Respondents concede that the existence of a valid listing contract between Eugene Tehan and Purtell is an essential prerequisite to their complaint stating a cause of action against appellants Hack and Sampson. Sec. 240.10, Stats., provides:

“Every contract to pay a commission to a real estate agent or broker or to any other person for selling or buying real estate or negotiating lease therefor for a term or terms exceeding a period of three years shall be void unless such contract or note or memorandum thereof describing such real estate, expressing the price for which the same may be sold or purchased, or terms of rental, the commission to be paid and the period during which the agent or broker shall procure a buyer or seller or tenant, be in writing and be subscribed by the person agreeing to pay such commission.”

Appellants contend that the complaint is fatally defective because it merely alleged, “That on the 16th day of May, 1960, the Defendant, Eugene Tehan, did enter into a certain listing contract with the Plaintiff, Edward A. Purtell, . . .”

This court has interpreted sec. 240.10, Stats., as an extension of the statute of frauds. In Hale v. Kreisel is was said:

“This statute clearly expresses the legislative intent that there shall be no recovery for such services in the absence of such a written contract. This statute is an extension or enlargement of the statute of frauds. It is as valid an exercise of the police power as are any of the other provisions of the statute of frauds which require certain contracts to be in writing.”

There is a conflict in the holdings of this court whether in pleading a contract which is subject to the statute of frauds it is essential to allege facts to establish that the contract does comply with the statute. The more recent cases hold that this is not necessary, while the earlier cases held that it was. Ordinarily, where there is a conflict in our past decisions, we prefer to adhere to the more recent cases. Furthermore, the more recent cases in this instance are in accord with the principle that a complaint, when challenged by demurrer, is to be given a liberal construction to permit all reasonable inferences to be drawn in favor of a finding that a cause of action has been stated. Therefore, we determine that the allegation with respect to the listing contract is sufficient against demurrer.

Appellants rely upon Raskin v. Hack which grew out of the sale by the Tehans to Hack as agent for Sampson of the same premises involved in this action. The contract at issue therein was not the instant listing contract, but rather the agreement for the sale of the premises which contained a provision for deduction from the purchase price of a $15,000 broker’s commission. Furthermore, the complaint set forth the entire agreement relied upon and this court held that the provision for payment of the broker’s commission did not comply with sec. 240.10, Stats. We fail to see how our holding in that case is material to the issue of the sufficiency of the instant complaint.

Allegations With Respect to Conspiracy to Induce Breach of Contract.

Paragraph 9 of the complaint is set forth verbatim in the statement of facts portion of this opinion. Appellants assert in their brief, “The allegations of Paragraph 9 of the complaint that defendants conspired to defraud plaintiffs of their just commissions does not in itself establish actionable fraud.” The fallacy of this contention lies in the fact that if the complaint states any cause of action against the two appellants it is good against demurrer.

While the complaint is not a model of good draftsmanship we construe it as alleging these facts: After the listing contract was entered into, and while it was still in effect, plaintiffs found a purchaser, i.e., Sampson acting through Hack, who was willing to purchase the listed premises upon the terms stated in the listing contract. However, in order that the Tehans would not have to pay a commission to plaintiffs, some additional conditions were imposed by the purchasers, Hack and Sampson, which the sellers Tehan would not agree to. Then, after the listing contract had expired, these conditions were withdrawn and the sale was made by the Tehans to Sampson. The defendants had conspired together in imposing the conditions which blocked the original sale, knowing at the time that they were later to be withdrawn.

The alleged facts, if true, clearly establish a cause of action in tort against the two appellants for inducing a breach of contract on the part of defendants Tehan. Therefore, it is not necessary to consider whether the allegations of the complaint are also sufficient to allege a conspiracy to defraud.

The essential elements of a cause of action for inducing a breach of contract are set forth in Restatement, 4 Torts, p. 49, sec. 766, as follows:

"Except as stated in Section 698, one who, without a privilege to do so, induces or otherwise purposely causes a third person not to
“ (a) perform a contract with another, or
“(b) enter into or continue a business relation with another
is liable to the other for the harm caused thereby.”

The allegations of the complaint sufficiently allege acts on the part of the two appellants to induce the Tehans to breach the listing contract entered into with Purtell of which contract appellants had full knowledge.

Holding Hack Liable as Well as Sampson.

Appellants contend that the complaint fails to state a cause of action against Hack inasmuch as it is clear from the allegations thereof that he was only acting as agent for Sampson. The only case cited in support of such contention involved an action on contract, not in tort. The general rule with respect to an agent’s liability in tort to third persons is stated in Restatement, 2 Agency (2d), p. 105, sec. 343, as follows:

“An agent who does an act otherwise a tort is not relieved from liability by the fact that he acted at the command of the principal or on account of the principal, except where he is exercising a privilege of the principal, or a privilege held by him for the protection of the principal’s interests, or where the principal owes no duty or less than the normal duty of care to the person harmed.”

Under this rule it is immaterial that Hack was acting as Sampson’s agent.

Dismissal of Second Cause of Action.

Appellants’ brief asserts, “This order dismissing the second cause of action on its merits in effect eradicated any claim by the plaintiff Purtell against the defendants Tehan for a brokerage commission.” Apparently this statement is made on the hypothesis that this order dismissing plaintiffs’ second cause of action is res judicata on the issue of the validity of the listing contract. This issue, however, cannot be raised by demurrer to the first cause of action, but must be pleaded by way of an affirmative defense in an answer to the complaint.

By the Court. — Order affirmed.

Gordon, J., took no part.

       (1927), 194 Wis. 271, 272, 215 N. W. 227. In accord is Wozny v. Basack (1963), 21 Wis. (2d) 86, 123 N. W. (2d) 513.

        Black Eagle Oil Co. v. Globe Oil & Refining Co. (1958), 3 Wis. (2d) 340, 88 N. W. (2d) 684; Eiche v. Wallrabenstein (1934), 215 Wis. 311, 254 N. W. 534.

        Flatley Bros. Co. v. Beauregard (1927), 192 Wis. 174, 212 N. W. 262; Kaufer v. Stumpf (1906), 129 Wis. 476, 109 N. W. 561.

        Estate of Mayer (1965), 26 Wis. (2d) 671, 675, 133 N. W. (2d) 322; Schneider Fuel & Supply Co. v. Thomas H. Bentley & Son (1965), 26 Wis. (2d) 549, 552, 133 N. W. (2d) 254; Jezo v. Jezo (1963), 19 Wis. (2d) 78, 82, 119 N. W. (2d) 471; Christenson & Arndt, Inc., v. Wisconsin Telephone Co. (1953), 264 Wis. 238, 243, 58 N. W. (2d) 682. Also see sec. 263.27, Stats.

       (1962), 16 Wis. (2d) 296, 114 N. W. (2d) 483.

       Sec. 698 of Restatement, 3 Torts, covers contracts to marry.

       In accord: Gunther v. Ullrich (1892), 82 Wis. 222, 228, 52 N. W. 88; 3 Am. Jur. (2d), Agency, pp. 659, 660, sec. 300; 3 C. J. S., Agency, p. 129, sec. 220.

        Lowe v. Laursen (1930), 201 Wis. 309, 312, 313, 230 N. W. 75; In re Kaldenberg’s Estate (Iowa 1964), 127 N. W. (2d) 649; Thoman v. Ashley (1964 Fla. App.), 170 So. (2d) 332; Marshall v. Chapman’s Estate (1948), 31 Wash. (2d) 137, 195 Pac. (2d) 656; McNunis v. Zukosky (1955), 141 W. Va. 145, 89 S. E. (2d) 354.


source: Caselaw Access Project

author: Gordon, J.

license: Public Domain

text:
    Zinda, Respondent, v. Pavloski and another, Appellants. Pavloski, Appellant, v. Hardware Mutual Casualty Insurance Company and another, Respondents.

      January 7

    February 1, 1966.

      For the appellants there was a brief by Genrich, Ter-williger, Wakeen, Piehler & Conway of Wausau, for Stanley B. Pavloski and the Casualty Reciprocal Exchange, and John J. Haka of Stevens Point, for Stanley B. Pav-loski, attorneys, and Roger Rouse of Wausau of counsel, and oral argument by Mr. Rouse.

    For the respondents there was a brief by Herman J. Glinski of Stevens Point, for Robert J. Zinda, and Peick-

      ert, Anderson, Fisher, Shannon & O’Brien of Stevens Point, for the Hardware Mutual Casualty Insurance Company and Robert J. Zinda, and oral argument by Mr. Glinski and Mr. John E. Shannon, Jr.

   Gordon, J.

There are three major contentions advanced by the appellants. The first is their claim that certain photographs were improperly admitted into evidence. The second contention is that the verdict is contrary to the evidence insofar as it found Mr. Zinda entirely free of negligence. Thirdly, it is urged that the award of $15,000 in damages to Mr. Zinda is excessive.

The Admission of the Photographs.

Exhibit 4 and also Exhibits 11 through 16 are photographs of the locale where the accident took place. They were admitted into evidence over objection. The appellants claim that the photographs are misleading insofar as they show skid marks which were not specifically identified as coming from the Zinda vehicle.

While it is true that there was no specific testimony which in so many words established that the skid marks were caused by Mr. Zinda’s vehicle, this should not preclude the jury’s consideration of such photographs as relevant evidence going to that very question. In other words, in the absence of definitive proof that the skid marks did not come from the Zinda car, it was appropriate that the jury have before it photographs taken at a time closely related to the accident from which the jury might infer that the skid marks did actually result from Mr. Zinda’s braking.

The record does not categorically establish the fact that these skid marks could not have come from the Zinda automobile. Mr. Zinda testified that he was going approximately 40 to 45 miles per hour when the Pavloski vehicle veered in front of him, whereupon he applied his brakes. Mr. Zinda was unable to state whether his car skidded prior to the collision, hut the jury could have considered his speed and the fact that he applied his brakes and inferred that skidding might have resulted. In any event, it is safe to say that the absence of skid marks was not uncontrovertibly established.

Several witnesses testified that the photographs contained a true and correct representation of the scene. One witness, Officer Worzalla, testified that he observed the skid marks appearing on Exhibits 11 and 13 and that he had discovered them while he was investigating the accident on the same day that the collision occurred. Thus, the photographs, which were taken the day after the accident, were not remote in time and according to the evidence accurately reflected the scene as it existed on the very day of the accident. The pictures are certainly not conclusive of the fact that the skid marks appearing thereon were caused by the Zinda vehicle, but this fact does not deprive them of their probative value and relevance to such question.

Identification of skid marks can be established with certainty if a witness happened to observe the marks being created by the skidding car or if a witness were to see the marks extending right up to the tires of the car before it was moved. However, it does not follow that evidence as to skid marks may not be admitted for consideration by the trier of fact if less foundation is offered. But cf. Williams v. Graff (1950), 194 Md. 516, 524, 71 Atl. (2d) 450.

If the evidence is not remote in time and is located so as to be reasonably attributable to the car in question, the trial court in its discretion may permit the evidence to be received. In addition to the questions of remoteness and location of the marks, the court could properly weigh such other factors as the amount of other traffic at the scene and the probability of change in the condition of the roadway after the accident. 8 Am. Jur. (2d), p. 504, sec. 958; 23 A. L. R. (2d) 112.

We conclude that it was well within the discretion of the trial court to determine that these photographs were sufficiently fair and accurate to warrant being admitted into evidence. Neuenfeldt v. State, ante, p. 20, at page 32, 138 N. W. (2d) 252; Vollert v. Wisconsin Rapids (1965), 27 Wis. (2d) 171, 176, 133 N. W. (2d) 786; Commerce Ins. Co. v. Badger Paint & Hardware Stores (1953), 265 Wis. 174, 182, 60 N. W. (2d) 742.

It is also contended that the photographs were not properly verified pursuant to sec. 270.202, Stats., which requires that a photograph which is received in evidence shall contain a statement of the position of the camera and certain other technical information. It is conceded that the necessary information called for by sec. 270.202 was in fact contained on the back of the photographs. However, the appellants urge that the accuracy of such information was not verified by a competent witness.

The objection to the admission of the photographs did not specify this ground, and, accordingly, there was no occasion for the trial judge to question the accuracy of the technical information needed under sec. 270.202, Stats. The trial court’s finding that the photographs were properly authenticated and fairly represented what they attempted to depict are conclusions which are entitled to great weight and will not be reversed in the absence of an abuse of discretion. Commerce Ins. Co. v. Badger Paint & Hardware Stores (1953), 265 Wis. 174, 182, 60 N. W. (2d) 742; Wagner v. Peiffer (1951), 259 Wis. 566, 571, 572, 49 N. W. (2d) 739; Hupfer v. National Distilling Co. (1903), 119 Wis. 417, 427, 96 N. W. 809.

The Finding of No Negligence.

The appellants urge that the jury’s finding which absolved Mr. Zinda of all negligence is contrary to the evidence. The jury reached its conclusion even though there was evidence that Mr. Zinda had been awake for approximately nineteen hours and had consumed six to 10 beers within the five-hour period preceding the accident.

The two drivers’ versions of this accident were difficult to harmonize. Faced with two divergent stories, the jury chose to accept Mr. Zinda’s explanation of how the accident happened, and, in our opinion, there is credible evidence to sustain such view which was also approved by the trial court. St. Paul Fire & Marine Ins. Co. v. Burchard (1964), 25 Wis. (2d) 288, 293, 130 N. W. (2d) 866; Heritage Mut. Ins. Co. v. Sheboygan County (1962), 18 Wis. (2d) 166, 170, 118 N. W. (2d) 118.

There is nothing about Mr. Zinda’s conduct before the accident or about his manner of driving which would warrant our determining that as a matter of law he must have been chargeable with some negligence. There were disputed questions of fact before the jury, and we must consider the evidence in a light most favorable to sustain the verdict. Ziegler v. Wonn (1963), 18 Wis. (2d) 382, 384, 118 N. W. (2d) 706; Walker v. Baker (1961), 13 Wis. (2d) 637, 643, 109 N. W. (2d) 499. This jury may properly have been impressed with the fact that even though Mr. Pavloski was making a left turn, he did not see the Zinda car prior to the collision.

The Claim of Excessive Damages.

The jury awarded $15,000 to Mr. Zinda for personal injuries, and the appellants contend that such sum is excessive. In his ruling on motions after verdict, the trial judge stated: “I think the evidence well substantiates the finding of the jury with respect to damages.”

As a result of the accident, Mr. Zinda spent five days in the hospital. He returned to college three weeks after the accident but testified that he experienced severe headaches for eight weeks from the date of the accident. His headaches continued at the rate of about three a week until the time of the trial. He played basketball two and one-half months after the accident.

He sustained a nine-centimeter scar upon his forehead. This same injury caused a severing of his left eyebrow and resulted in a drooping eyelid. Despite plastic surgery on the scar, Mr. Zinda claimed that the scar was sufficiently visible so as to be an impediment to him in his occupation as a salesman. Dr. Frank Iber, his treating physician, stated that the scar will be permanently visible although it will fade a bit as time goes by. Mr. Zinda consulted Dr. Frank Bernard, a plastic surgeon, who performed an excision on the scar. In Dr. Bernard’s opinion, Mr. Zinda’s scar will be permanent and no further surgical procedures will improve it.

He also had injuries to his limbs and fractured ribs. He complained that his knee buckled when he climbed stairs, and Dr. Iber testified that knee surgery will be necessary if the buckling continues. Mr. Zinda claimed that he had back pain which occurred upon prolonged sitting. Dr. Iber declared that there was tenderness and muscle spasm in the upper lumbar region. Shortly after his return home from the hospital, Mr. Zinda incurred a respiratory infection which resulted in a high fever. Dr. Iber opined that this may have been a cause of his patient’s headaches.

We share the conclusion reached by the trial judge that the damages awarded to Mr. Zinda, who was twenty-one years of age at the time of the accident, were not excessive. Kink v. Combs (1965), 28 Wis. (2d) 65, 79, 135 N. W. (2d) 789; Kablitz v. Hoeft (1964), 25 Wis. (2d) 518, 525, 131 N. W. (2d) 346.

By the Court. — Judgments affirmed.


author: Wilkie, J.

text:
    Boehck Construction Equipment Corporation, Respondent, v. O’Brien and another, d/b/a Racine Excavating & Sewer Contractors Partnership, Appellants.

      January 7

    February 1, 1966.

      For the appellants there was a brief by Konnak & Constantine of Racine, and oral argument by Charles M. Constantine.

    For the respondent there was a brief and oral argument by Thomas J. Bergen of Milwaukee.
   Wilkie, J.

The major issue presented on this appeal is whether $4,000 is the reasonable value of the crawler within the meaning of sec. 122.221 (1), Stats. Although this section has been on the books since 1943, this court has not yet had the opportunity to consider what is meant by “reasonable value.” The trial court recognized three possibilities — the price bid at the sale, the wholesale price, and the retail sales value — and concluded that the reasonable value is “that value received from the sale at the time of the auction, unless upset by testimony.”

The trial court’s view of how reasonable value should be determined is sound. The court must start somewhere. The wholesale price and the retail sales price are not trustworthy indicators since they obviously reflect prices which, by definition, are either favorable to the original seller or buyer. Since the price received at the sale should theoretically be more neutral, particularly if bidding has been brisk, this figure should be used as a starting point.

Thus, the next consideration is whether the appellants presented evidence demonstrating that the bid price of $4,000 was unreasonable. Relying on testimony of John Dykstra, who was also in the excavating business, that the machine was worth $5,000 to $6,000, and pointing out that the machine was bought on April 27th for $6,000, that it had been used for a total of only thirty hours before repossession on June 12th, and that it had been properly maintained, appellants contend that the foreclosure sale price of $4,000 on July 7th, some eighty days after the actual delivery on April 18th, is patently unreasonable. However, the test is whether the trial court’s finding is against the great weight and clear preponderance of the evidence.

The respondent’s evidence countered that of appellants:

First, there was testimony by Thomas Pares, vice-president of respondent, and Harrison Duffy, one of respondent’s salesmen, that the crawler was worth $4,000.

Second, there was testimony to the effect that the value of excavation equipment in any given July would be less than in the spring when the demand for such machines is the greatest.

Third, there was testimony that the addition of a backhoe attachment, at appellants’ request, operated to make the machine a very specialized piece of equipment for which there was no ready market. This was further borne out by the fact that the crawler had not been resold by January 25,1965, the date of trial.

We conclude that the trial court’s finding was not against the great weight and clear preponderance of the evidence. In any event, it is difficult to give appellants the benefit of any doubt in regard to the value question for the reason that they failed to appear at the sale to protect their interests despite the fact that they received notice over and above that required by law. Having chosen to lie in the weeds at that time they are not in the best position to now complain.

Also claimed as error is the refusal of the trial court to allow appellant Michael Glaub to testify as an expert on the value question. In view of Glaub’s untimely admission that “I wouldn’t say I was an expert on . . . [these machines]” while his counsel was attempting to lay a proper foundation for his expertise, the trial court did not err in barring his testimony.

By the Court. — Judgment affirmed.

       “122.221 Deficiency judgments. (1) No deficiency judgment after foreclosure shall be taken upon an obligation secured by a conditional sales contract, either on cognovit or otherwise, except in an action brought for that purpose with process served in the manner by law provided upon all the persons to be charged with such deficiency judgment. In such action the court shall find the reasonable value of the chattels sold at the time of sale and the sum then due on such obligation, including all proper costs and charges, and upon such findings shall grant the deficiency or deny a deficiency if none appears due.” (Emphasis added.) This section has since been repealed by the Uniform Commercial Code.

       New York, while it had the Uniform Sales Act, accomplished this by specific legislation. Sec. 80-b (1), McKinney’s Consolidated Laws of New York Anno., Book 40, part 2, provides: “(1) the buyer may have the reasonable value of the goods at the time of resale determined in any action or proceeding brought by the seller to recover the deficiency, the resale ‘price being prima fade but not conclusive evidence of such reasonable value, and the said reasonable value as determined, or the resale price, whichever shall be higher, shall be credited to the buyer on account of his indebtedness; . . .” (Emphasis added.)

        Huber Glass Co. v. First Nat. Bank, ante, p. 106, 138 N. W. (2d) 157; Philipp Lithographing Co. v. Babich (1965), 27 Wis. (2d) 645, 135 N. W. (2d) 343.


author: Heffernan, J.

text:
    Hartwig and another, Appellants, v. Bitter, Respondent.

      January 10

    February 1, 1966.

      For the appellants there was a brief and oral argument by David L. Walther of Milwaukee.
    For the respondent there was a brief by Ray T. McCann and Richard A. McDermott, both of Milwaukee, and oral argument by Mr. McDermott.

   Heffernan, J.

I.

Were the representations of the defendant merely opinions in regard to future events and, hence, not actionable?

The trial judge correctly stated the general rule that, in actions for deceit, the fraudulent misrepresentations must relate to present or pre-existing events or facts and cannot be merely unfulfilled promises or statements of future events.

The exception to that general rule was foreshadowed in the concurring opinion of Mr. Justice Edward Fairchild in Beers v. Atlas Assurance Co. The exception to the rule was adopted by this court in Alropa Corp. v. Flatley. It is that exception to the in praesenti rule that we consider applicable here.

The rule and the exception are stated in Alropa.

“To amount to a fraud upon the purchaser the representations must relate to present or pre-existing facts, and it cannot ordinarily be predicated on unfulfilled promises or statements made as to future events. Beers v. Atlas Assurance Co. (1934), 215 Wis. 165, 253 N. W. 584. One of the exceptions to this rule is that when promises are made upon which the purchaser has a right to rely, and at the time of making them the promisor has a present intent not to perform them, the promises may amount to fraudulent representations and liability result.”

Prosser points out that:

“Ordinarily a prediction as to events to occur in the future is to be regarded as a statement of opinion only, on which the adverse party has no right to rely. It was said very early that ‘one cannot warrant a thing which will happen in the future,’ and where the statement is that prices will remain unchanged, that taxes will be reduced, that cattle will reach a given weight within a specified time, that the plaintiff will be able to obtain a position, or that he will have profitable building lots next to a highway, the law has required him to form his own conclusions. Such prophecy does, however, always carry an implied representation that the speaker knows of no facts which will prevent it from being accomplished; and as in the case of any other opinion, it has been held that there may be reasonable reliance upon the assertion where the speaker purports to have special knowledge of facts which would justify the expectations he is raising.”

In Wisconsin the “pre-existing fact” rule does not apply where the promisor has a present intention not to perform. In addition, though a matter asserted is an opinion, it is actionable if the maker is aware of present facts incompatible with that opinion. In Zingale v. Mills Novelty Co. this court adopted the rule of the Restatement:

“A statement of opinion in a business transaction upon facts not disclosed or otherwise known to the recipient may reasonably be interpreted as an implied statement that the maker knows of no fact incompatible with his opinion . . . .”

In Zingale our court held that it was actionable for the seller to make a statement that the premises were “an ideal location to manufacture ice cream,” when he in fact knew that the regulations of the state department of agriculture would prohibit the manufacture of ice cream on the premises.

It is clear, therefore, that if, at the time of the assertion, the utterer is aware of facts that are incompatible with his opinion or if he has no intent to perform in the future, the fraud is in praesenti.

Applying these principles — if, as alleged by the plaintiffs, the defendant knew that the “prospects” in fact were not interested in the purchase or sale of property, the misrepresentation was of a fact known to the defendant at the time. It is not a promise or a representation of a future event. We conclude that allegation states facts sufficient to constitute a cause of action.

A closer question is presented by the allegation that Hartwig and Wendt were falsely told they would earn large sums of money. If this were the usual case where the defendant himself was merely “puffing” the potential of the employment, we would hold that the representation was of the nature made in Alropa, supra, where the vendor predicted extensive development of Florida real estate. In that case, we stated:

“There is nothing in the evidence to show that the vendor or its agent did not, . . . have reason to believe that its expectations would be fulfilled.”

Here, however, it is alleged that the defendant knew that nine previous salesmen over a period of four years had grossed commissions not in excess of $752.50. Hence, it is alleged that the defendant, who was in a unique position to know the facts, was aware of facts that were incompatible with his representations in regard to the future. This allegation states a cause of action.

The defendant falsely told the plaintiff Wendt that he was closing sales “right along.” This is a misrepresentation of an existing fact and is actionable.

We conclude also that plaintiff Hartwig’s allegation that defendant falsely stated he would engage in business in a lawful manner constitutes an actionable misrepresentation. The complaint alleges that defendant “did not intend to conduct his business in a lawful and proper fashion.” This allegation of intent not to perform in the future as stated is a misrepresentation of a present fact. While proof of this type is difficult, the allegation sufficiently states that the promise was made with present intent to the contrary.

We therefore hold that the allegations, taken as verities, as we must when a question is before us on demurrer, do state facts sufficient to state a cause of action for deceit. We would in this respect disagree with the trial judge and overrule the demurrer.

II.

Were the two causes o f action improperly joined in a single complaint?

The defendant also demurred on the ground that the several causes of action were improperly united. We agree with the trial judge’s determination that the demurrer in this respect must be sustained.

We have recently found it necessary to consider and define a cause of action. We said in Caygill v. Ipsen (1965), 27 Wis. (2d) 578, 582, 135 N. W. (2d) 284:

“. . . a cause of action must be viewed as a grouping of facts falling into a single unit or occurrence as a lay person would view them. This grouping of facts consists of ‘the defendant’s wrongful act.’ ”

Applying this test in the instant case, it is apparent that no one would view the alleged torts to Hartwig and Wendt as a single occurrence. The misrepresentation to Hartwig was made on January 15, 1964, and the misrepresentation to Wendt was almost two years earlier, in 1962. This was in no sense a single occurrence or a single cause of action. Each plaintiff has a separate cause of action.

The plaintiffs contend, however, that the plaintiffs may be joined in a single suit. They rely on sec. 260.10, Stats.:

“All persons having an interest in the subject of the action or in obtaining the relief demanded may be joined as plaintiffs.”

It is clear that Hartwig and Wendt are not interested in obtaining the relief demanded since each on the face of the complaint seeks his separate relief in damages. Nor do they have an interest in the “subject of the action.” There is no common fund or property in which they claim to have an interest. There is no “subject of the action” in which they have a common interest.

Nor may they be joined on the ground that they make claim against the defendant based upon the “same alleged tortious conduct” as permitted by sec. 260.12, Stats. Though the tortious conduct in each cause of action is similar in nature, i.e., deceit, it clearly is not the same conduct. The tortious acts are to some degree different in nature and are clearly separated by a substantial time interval.

While we agree with the plaintiffs’ position that the rules of pleading should be construed to effect efficient judicial administration, the rules that they cite do not permit joinder, and the section of the statute relied upon by the trial judge specifically prohibits it.

Sec. 263.04, Stats., provides in part:

“But the causes of action so united must affect all the parties to the action . . . .”

It is apparent that neither Wendt’s cause of action nor Hartwig’s in any way affects the other. They are completely separate torts, and under our rules cannot be joined in a single complaint.

III

Were other parties, allegedly similarly deceived, necessary parties ?

In addition, defendant demurred on the ground that other persons to whom defendant allegedly made similar representations were necessary parties, and that failure to join them constituted a defect in parties plaintiff, subjecting the complaint to demurrer. Inasmuch as these persons appear to have claims for deceit similar to those of Hartwig and Wendt, their claims are separate causes of action, which cannot be joined in this suit. We hold that they are not necessary parties, and the demurrer on that ground must be overruled.

Though we find that the complaint alleges facts sufficient to state a cause of action for deceit and, in that particular, reverse the order of the trial court sustaining the demurrer, we affirm that portion of the order sustaining the demurrer on the ground of improper joinder of parties plaintiff. Since one of the grounds for demurrer is sustained, the order must be affirmed.

By the Court. — The order sustaining the demurrer is affirmed, with leave granted the plaintiffs to plead over within twenty days, with that period to run from the date the record is returned to the circuit court.

        J. H. Clark Co. v. Rice (1906), 127 Wis. 451, 465, 106 N. W. 231.

       (1934), 215 Wis. 165, 185, 253 N. W. 584.

       (1938), 226 Wis. 561, 565, 277 N. W. 108.

         Alropa Corp. v. Flatley, supra, page 565; Anderson v. Tri-State Home Improvement Co. (1955), 268 Wis. 455, 462, 67 N. W. (2d) 853, 68 N. W. (2d) 705.

       Prosser, Law of Torts (hornbook series, 3d ed.), p. 744, sec. 104.

       (1943), 244 Wis. 144, 150, 11 N. W. (2d) 644.

       Restatement, 3 Torts, p. 91, sec. 539.

       Prosser, supra, p. 745.

        Alropa Corp. v. Flatley (1938), 226 Wis. 561, 566, 277 N. W. 108.

        “ ‘The state of a man’s mind,’ said Lord Bowen in 1882, ‘is as much, a fact as the state of his digestion.’ ” Prosser, supra, p. 745.

       Subject of the action may be broadly interpreted as meaning subject matter of the action. Clark, Code Pleading (hornbook series, 2d ed.), p. 358, see. 57. In Schiffer v. Eau Claire (1881), 51 Wis. 385, 8 N. W. 253, the court concluded that a widow claiming that her dower interest had been damaged by tortious conduct could join with her children and the administrator in a suit against an alleged tortfeasor when all had an interest in the “subject of the action,” the premises owned by the plaintiffs.

       See. 260.12, Stats., provides in part:
      “Of the parties to the action those who are united in interest must be joined as plaintiffs or defendants; . . .”


text:
    Weeden and wife, Appellants, v. City of Beloit, Respondent.

      January 10

    February 1, 1966.

      For the appellants there was a brief and oral argument by Clyde E. Sheets of Milwaukee.
    For the respondent there was a brief by Ga/rrigan, Keithley, O’Neal, Dobson & Elliott and Roger D. O’Neal, all of Beloit, and oral argument by Roger D. O’Neal.

   Heffernan, J.

Is there credible evidence to sustain the jury’s verdict?

In reviewing a jury verdict this court need only consider that evidence which supports the verdict. It is also clearly a rule of this court that a verdict should not he disturbed “if there is any credible evidence which under any reasonable view fairly admits of an inference that supports the jury’s finding.” This approach is especially applicable when, as in the instant case, the trial court approved of the verdict. That this approach is equally applicable in condemnation cases is evident from the following statement made by this court in affirming a jury verdict on a condemnation award:

“We must be mindful that the court below passed upon the matter under circumstances more favorable for arriving at a just result than are afforded here. To disturb the result would require overriding the conclusion of the jury, reinforced by that of the trial judge.”

The instant case also presented the jury and the trial court with considerable conflicting expert testimony. It was the duty of the trier of the fact to determine the credibility of the witnesses and resolve the conflicting testimony. This rule is equally applicable in condemnation cases.

The evidence presented clearly sustains the jury’s verdict finding that the fair market value was $34,000.

One of the appellants’ witnesses testified that the property had a value of $75,600, and the other testified to a value of $70,000. Three witnesses appeared for the city and, as is not unusual in these cases, they appraised the land at appreciably less. Their figures were $22,355.-95, $22,379.00, and $22,378.33. In addition, evidence of comparable sales was admitted by the trial judge.

In Hurkman v. State this court stated:

“We take notice from the records of innumerable land-condemnation cases that opinions of ostensibly equally qualified experts as to values often vary to a substantial and irreconcilable degree. Considering the opinions of the experts alone, in these cases, can leave the jury with little rational basis for its ultimate findings. In these instances proper evidence of comparable sales can be of substantial aid to the jury in the performance of its obligation to find the true value.”

These sale prices varied from $9,000 to $45,000. Appellants contend that the comparable sales offered by the city were not similar enough to provide a basis of valuing the property in question. The rule, however, in this state is that it is in the sound discretion of the trial court to determine whether the sales offered are sufficiently comparable to be of assistance to the jury in ascertaining fair market value. The trial judge’s determination in this respect will not be reversed in the absence of clear error. Moreover, the extent to which the offered sales are truly comparable goes to the weight of the expert’s testimony and not to admissibility.

In addition, the jury was properly instructed that in giving weight and effect to other sales it was to consider “all of the elements of similarity in situation and time, and also all of the elements of dissimilarity and to determine how far such sales go to establish what was the fair market value on the day of taking.”

This court said in Bear v. Kenosha County:

“The expert witness testifying as to value of property which he has examined should base his opinion on comparable sales as an element of value if such sales exist. The sales used as a foundation or partial foundation of an expert’s opinion of value are admissible and if not comparable, go to the weight of the expert’s opinion, not their admissibility. The rule of comparable sales is applicable to direct evidence of sales for consideration of the jury in determining the value. The materiality of the elements of the foundation for an expert’s opinion goes to its weight.”

It is clear that the value arrived at was well within the range of values placed in evidence. While it may well be possible for reasonable persons to arrive at different values within the limits placed in evidence, there is credible evidence to sustain the jury’s verdict.

Was it improper for three of the city’s witnesses to testify to a value based on a joint or collaborated appraisal?

The appellants contend that the values testified to by the city’s witnesses do not support the verdict inasmuch as it was admitted that the figure testified to was arrived at after a series of conferences between the three witnesses and was an average of separate valuations. The appellants claim that this is a quotient appraisal and is invalid. The question of quotient appraisals has not been considered by this court before. In the few reported cases on this subject in other jurisdictions, the courts have determined the question of whether the appraisal was an improper quotient appraisal by applying the same rule as that applied in determining whether a jury’s verdict was an improper quotient verdict. The crucial issue, therefore, is whether the appraisers agree in advance to accept as a final appraisal figure a sum arrived at by dividing the aggregate of the amounts of their individual estimates by the number of appraisers, regardless of their individual judgment. If this is done, the appraisal is considered invalid. We are in agreement with this approach as applied to quotient jury verdicts.

Even though we were to apply the rationale of the quotient-verdict cases to appraisals, we would not find the procedure utilized here objectionable.

While it was admitted that the appraisers averaged separate valuations and by dividing arrived at a figure, the record is devoid of any evidence to show that they agreed in advance to bind themselves to that quotient. Rather, it appears that they met as many as five times, discussed various approaches to valuation, and after reaching a quotient agreed that the amount thus derived represented the individual valuation of each of them. There is no testimony that any of the witnesses arrived at a final individual appraisal in advance of these discussions. The record shows that each of them separately visited the premises, and they together estimated the value of the property by computing the value on the basis of various accepted methods of valuation (comparable sale, income, and cost of reproduction). These various values were added together, and that sum was divided by the number of valuation methods utilized. Nowhere does the record show that the witnesses agreed in advance to be bound by the figure that resulted. It is clear, moreover, that the figure was the quotient of the values arrived at by the several methods, and not the quotient of each appraiser’s considered valuation. It is only by coincidence that the number of methods used was the same as the number of appraisers. It is therefore apparent that the result reached here would not be invalid even in those states that frown on quotient appraisals.

Moreover, we do not consider the “appraisal” here analogous to the situation where the award of appraisers in and of itself has some legal effect, as, for example, an appraisal pursuant to a policy of insurance under sec. 203.04, Stats. The appellants and the record refer to the parties who testified in regard to value on behalf of the city as “appraisers.” In fact, in a judicial inquiry into value, they are nothing more than expert witnesses; and, as a consequence, the weight of their testimony and of their opinions is subject to the tests usually employed in courts, and though these experts agreed in advance to set individual values and then arrived at a quotient as the group’s opinion, we would not hold that that figure did not have evidentiary value. The opinion of an expert witness as to value has little probative worth unless it is soundly arrived at. In the event a quotient figure were used, it would be incumbent in a condemnation award for the witness to detail, as he does now, his computations, the various individual values that were used, and the methods employed to arrive at each of them. As the trial judge required in this case, the method used by the experts would have to be clearly set forth, the individuals could be obliged to testify, and they would be subject to cross-examination. The validity of their individual opinions could easily be examined. In this respect, a quotient opinion as to value is very different from a quotient verdict. If his opinion is to have any weight, it is the duty of the witness to testify concerning the method of his analysis, while the jurors in this state have no right to testify concerning the method of reaching a verdict. It is our opinion that expert witnesses as to value should not be limited by the same rule that outlaws quotient jury verdicts.

Did the trial court improperly retain $7,000 of the jury award as security for rent due from former owner to city of Beloit?

On motions after verdict the city first raised the question of the owners’ failure to pay rent. It alleged that the owners had agreed to pay the rent from the eventual condemnation award, and that $6,500 was owed at the date of the judgment. The city asked that the amount of rental due be deducted from the award and paid over to it. The appellants filed appropriate objections and contended that it was entitled to a jury trial in a separate action for the purpose of determining its liability to the city of Beloit. The court then ordered that the sum of $7,000 “be retained by the Clerk of the Circuit Court ... to be held as security for such rentals, if any, . . . as may finally be determined in a separate action brought by the city of Beloit, said action to be brought within 90 days from April 2,1965.”

The appellants object to the withholding of this sum. The only reason advanced for the objection, however, is their contention that the trial court is in effect setting a ninety-day statute of limitations for the commencement of a rental action by the city. If this were the case, it is not apparent what standing the appellants have to object to a period of limitations running against the city. However, it obviously is not that. The trial court cannot limit the time in which action can be brought to collect the rent, and it has not attempted to do so. It merely has told the city that, if it wished to resort to the $7,000, a particular fund segregated from the condemnation award, it was obliged to act within ninety days.

We consider the action of the court to be within its inherent powers to further the administration of justice. In effect it consented to act as stakeholder, and invited an action similar to interpleader under the Federal Rules, for the purpose of determining the right to the fund in question.

The appellants also ask for reversal and a new trial in the interest of justice. However, upon a complete review of the record and the evidence therein, we cannot conclude that it is probable that justice has miscarried or that the award is not supported by the evidence.

By the Court. — Judgment affirmed.

       Lane v. Collins, ante, p. 66, at page 70, 138 N. W. (2d) 264; Zartner v. Scopp (1965), 28 Wis. (2d) 205, 209, 137 N. W. (2d) 107; Jensen v. Heritage Mut. Ins. Co. (1964), 23 Wis. (2d) 344, 348, 127 N. W. (2d) 228.

        Fields v. Creek (1963), 21 Wis. (2d) 562, 568, 124 N. W. (2d) 599; Lemke v. Guse (1965), 26 Wis. (2d) 80, 83, 131 N. W. (2d) 893; Bleyer v. Gross (1963), 19 Wis. (2d) 305, 307, 120 N. W. (2d) 156.

        Cheetham v. Piggly Wiggly Madison Co. (1964), 24 Wis. (2d) 286, 290, 128 N. W. (2d) 400; Schwalbach v. Antigo Electric & Gas, Inc. (1965), 27 Wis. (2d) 651, 654, 135 N. W. (2d) 263; Schilling v. Stockel (1965), 26 Wis. (2d) 525, 538, 133 N. W. (2d) 335.

        Murdock v. Beloit, D. L. & J. R. Co. (1911), 147 Wis. 100, 103, 132 N. W. 979.

         Drane v. State, ante, p. 208, 138 N. W. (2d) 273; Gauthier v. State (1965), 28 Wis. (2d) 412, 416, 137 N. W. (2d) 101; State v. Stevens (1965), 26 Wis. (2d) 451, 464, 132 N. W. (2d) 502.

        Smuda v. Milwaukee County (1958), 3 Wis. (2d) 473, 475, 476, 89 N. W. (2d) 186.

       (1964), 24 Wis. (2d) 634, 130 N. W. (2d) 244.

       Id. at page 641; other eases noting the admissibility of comparable sales include Bear v. Kenosha County (1963), 22 Wis. (2d) 92, 99, 100, 125 N. W. (2d) 375; Smuda v. Milwaukee County, supra, footnote 6; Blick v. Ozaukee County (1923), 180 Wis. 45, 46, 192 N. W. 380; American States Security Co. v. Milwaukee N. R. Co. (1909), 139 Wis. 199, 206, 120 N. W. 844; Stolze v. Manitowoc Terminal Co. (1898), 100 Wis. 208, 214, 75 N. W. 987; Washburn v. Milwaukee & Lake Winnebago R. Co. (1884), 59 Wis. 364, 377, 18 N. W. 328; Watson v. Milwaukee & M. R. Co. (1883), 57 Wis. 332, 350, 15 N. W. 468. Also see Heaney, Land Condemnation, 1959 Seminar for Wisconsin Lawyers, pp. 47-50; 5 Nichols, Eminent Domain (3d ed.), pp. 408-410, sec. 21.1, and pp. 417-436, sec. 21.3 [1]; 1 Orgel, Valuation under The Law of Eminent Domain (2d ed.), pp. 682-595, secs. 137-141; Anno. Admissibility on issue of value of real property of evidence of sale price of other real property, 85 A. L. R. (2d) 110, 114, 119, 122.

        Blick v. Ozaukee County, supra, footnote 8; American States Security Co. v. Milwaukee N. R. Co., supra, footnote 8; Stolze v. Manitowoc Terminal Co., supra, footnote 8. See again 1 Orgel, p. 586, sec. 138; Anno. 85 A. L. R. (2d) 110, 126. Also see Bear v. Kenosha County, supra, footnote 8, where the trial court’s discretion is stressed on sales not as direct evidence of comparable sales but as a basis for the expert witnesses’ opinion.

        Bear v. Kenosha County, supra, footnote 8, page 100.

        Virginia Electric & Power Co. v. Marks (1953), 195 Va. 468, 476, 477, 78 S. E. (2d) 677, 39 A. L. R. (2d) 1201; Schreiber v. Pacific Coast Fire Ins. Co. (1950), 195 Md. 639, 644, 75 Atl. (2d) 108, 20 A. L. R. (2d) 951. Also see Annos. Quotient arbitration award or appraisal, 20 A. L. R. (2d) 958, and Quotient condemnation report or award by commissioners or the like, 39 A. L. R. (2d) 1208.

        Ken-Crete Products Co. v. State Highway Comm. (1964), 24 Wis. (2d) 355, 363, 129 N. W. (2d) 130; Schiro v. Oriental Realty Co. (1959), 7 Wis. (2d) 556, 564, 97 N. W. (2d) 385. Also see Anno. Quotient Verdicts, 52 A. L. R. 41, 44.

       “It is not unusual or unnatural for men of independent minds, composing a condemnation commission, to take different views of values. Consequently, they are frequently called upon to adjust their views to the views of their associates. If they undertake such adjustment with open minds and, after a full and fair discussion, give due consideration to the evidence, the opinions of their associates, and all of the factors involved, and without the sacrifice of their conscientious and deliberate opinion reach agreement as to what their award should be, then their award is a valid award and not a quotient award.” Virginia Electric & Power Co. v. Marks (1953), 195 Va. 468, 476, 477, 78 S. E. (2d) 677, 39 A. L. R. (2d) 1201.
      In accord is the following statement from Schreiber v. Pacific Coast Fire Ins. Co. (1950), 195 Md. 639, 644, 75 Atl. (2d) 108, 20 A. L. R. (2d) 951:
      “It has been held that a quotient verdict is no more lawful for arbitrators than for jurors. [Case cited.] If, however, two arbitrators or appraisers strike a mean between the opposing claims of the parties and then adopt it as their appraisal, this is not unlawful, though it might be if they had agreed in advance to accept the mean. [Case cited.] In the instant ease we think the appraisal is not invalid. We do not sanction ‘quotient verdicts’ by arbitrators or appraisers. But without some conscious or subconscious, exact or approximate, splitting of differences, no agreement would be reached by jurors, arbitrators, appraisers or bargainers. There is no evidence that these appraisers agreed to be bound by the result of their computations or otherwise subordinated their judgment to the fall of the dice.”

        Ford Motor Credit Co. v. Amodt, ante, p. 441, 139 N. W. (2d) 6.

       Federal Rules of Civil Procedure, 28 U. S. Code, sec. 1335.


author: Beilfuss, J.

text:
    Gradinjan, Respondent, v. Boho, Appellant.

      January 10

    February 1, 1966.

      For the appellant there were briefs by O’Melia & Kaye of Rhinelander, and oral argument by Walter F. Kaye.

    For the respondent there was a brief by Nikolay, Jensen & Scott of Colby, and oral argument by John J. Nikolay.

   Beilfuss, J.

The issues presented in this appeal are:

1. Did the respondent, Gradinjan, properly and timely appeal to the circuit court?

2. Were the three questioned ballots absentee ballots?

3. Is the provision of sec. 11.62, Stats., that absentee ballots not containing the name or initials of the issuing municipal clerk shall not be accepted or counted mandatory rather than directory?

Sec. 6.66 (3), Stats., provides:

“Within 5 days after the recount determination of said board, any candidate, or any elector who voted upon such constitutional amendment or proposition, as the case may be, aggrieved thereby may appeal therefrom to the circuit court of said county, by serving a notice in writing to that effect upon such other candidates or persons who filed written notices of appearances with said board. Such notice shall be filed with the clerk of the circuit court, together with an undertaking by the appellant, with surety and in an amount to be approved by the clerk of said court or the judge thereof, conditioned for the payment of all costs taxed against said appellant. The circuit judge shall forthwith issue an order directing the clerk of said county, or of said city, town or village or the secretary of the board of election commissioners, to transmit to the clerk of said court forthwith all ballots, papers and records affecting such appeal and fixing a time and place for hearing thereon, in open court or at chambers, or before a referee, not later than 5 days from the making of such order. Such order shall be served upon the county clerk, or the city, town or village clerk, or secretary of the board of election commissioners, as the case may be, and all such other candidates or persons who have appeared before said board. A reference may be ordered upon any or all questions. At the time and place so fixed the matter shall be summarily heard and determined and the costs taxed as in other civil actions.”

The election was on April 6, 1965, and the board of canvassers’ certificate after recount was dated April 13, 1965.

The brief filed on behalf of the appellant Boho asserts that “ [n] o papers or process of any kind were filed with the clerk of court until April 19, 1965 when only the court’s order of April 16 was filed, but no* notice of appeal, or any averment of error, when even now remain apparently unfiled.”

An examination of the record on appeal does not bear out these assertions. The record pages one through four reveal that the notice of appeal and proof of service of such notice on Boho and his attorney were dated and filed in the office of the clerk of circuit court on April 16,1965. The record further reveals the order for hearing is dated April 16th and filed April 19th, and the undertaking for costs is dated April 16th and filed April 19th.

We agree with the trial court wherein it stated:

“The respondent-contestee, Joseph Boho, has moved to dismiss this proceeding because of an alleged failure to commence it within the time allowed by law and for a failure to comply with filing requirements. The governing statute is Sec. 6.66 (3), Wis. Stats. Such statute requires only that, as to timeliness, a notice of appeal shall be served upon ‘such other candidates or persons who filed written notices of appearance with said board’ within five days after the determination of the Board of Canvassers. This was done. The statute further provides that the notice and an undertaking be filed with the Clerk of Circuit Court. No time is expressed within which such filing must be done. The timely filing of a petition and the other provisions of statute to which counsel refers have to do with applications for a recount addressed to the Board of Canvassers and have no application to a review by this court. The motion to dismiss is denied.”

At the trial there was a question as to whether the three questioned ballots were in fact absentee ballots. It is undisputed that the ballots in question do not have upon them at any place the initials or the name of either the ballot clerks or the town clerk and that these ballots do have a very faintly visible imprint of the seal of the town clerk.

Counsel for Boho contends that the town clerk only assumed that the questioned ballots were absentee ballots and that this evidence is incompetent and insufficient to support a finding that they are absentee ballots.

Again the record does not bear out this factual contention.

At the trial Mr. Joe Bonkowski, the town clerk, testified as follows:

“By Mr. Bader:
“Q. Mr. Bonkowski, did you make any determination, did you inspect these ballots on the date of April 9th? A. I didn’t handle the ballots on that day, just glanced over them on the table. All I did was check on the tally sheet.
“Q. When the fact was raised three of these ballots had no signature on these ballots, by yourself, you realized that didn’t you when you saw the ballot your signature was lacking? A. Yes.
“Q. Why did you feel then that it was your signature that should have been on the ballots instead of the initials of the two ballot clerks? A. Well, these absentee ballots are sent out or given out—
“Q. You assume that these are absentee ballots, is that correct? A'. Yes.
“Mr. Kaye: I think he is making an assumption.
“The Court: You assumed these were absentee ballots. You don’t know whether they are or not, do you?
“A. Those are absentee ballots, I am positive.
“The Court: How do you know?
“A. On the other ballots, besides these three, there is a seal on there and there are no seals on there whatsoever. I put the town seal on there.
“By Mr. Bader:
“Q. You are supposed to put the town seal on there? A. You are supposed to put the name on them when they issue the ballot, which wasn’t done intentionally.
“Mr. Bader: I have no further questions.
“Recross-Examination
“By Mr. Kaye:
“Q. You say that you know these were absentee ballots? A. Yes, sir.”

The finding of fact by the trial court that the questioned ballots were absentee ballots and that they did not bear the name or the initials of the town clerk as required by secs. 11.57 and 11.61, Stats., is amply supported by the credible evidence. The testimony of Mr. Bonkowski on this issue was not refuted or successfully challenged. Certainly this finding cannot be disturbed on this appeal as being against the great weight and clear preponderance of the evidence.

The most important question before us is whether the pertinent provision of sec. 11.62, Stats., namely, “if the ballot does not contain the name or initials of the clerk of the issuing town, . . . such vote shall not be accepted or counted, . . .” is mandatory or directory.

Sec. 11.62, Stats., in its entirety, is as follows:

“Deposit of ballot in ballot box. At any time between the opening and closing of the polls on such election day the inspectors of election of said precinct shall open the outer or carrier envelope only, and announce the absent voter’s name. In case the inspectors find the affidavit executed, that the applicant is a duly qualified elector of the precinct and that the applicant has not voted in person at said election, they shall open the envelope containing such voter’s ballot in such manner as not to deface or destroy the affidavit thereon and take out the ballot or ballots therein contained without unfolding or permitting the same to be unfolded or examined and, after verification that the ballot has been indorsed by the issuing county, town, city, village clerk, or the secretary under s. 11.66, deposit the same in the proper ballot box or boxes and enter the absent voter’s name or voting number after his name on the poll book or list, the same as if he had been present and voted in person. In case such affidavit is found to be insufficient, or that the applicant is not a duly qualified elector in such precinct, or that the ballot envelope is open, or has been opened and resealed, or that the ballot envelope contains more than one ballot of any one kind, or if the ballot does not contain the name or initials of the clerk of the issuing town, city, village or county, or the secretary under s. 11.66, such vote shall not be accepted or counted. Every ballot not counted shall be indorsed on the back thereof ‘rejected’ (giving reason therefor). Each rejected ballot shall be reinserted in the affidavit envelope in which it was originally delivered and such affidavit envelopes and ballots shall be enclosed and securely sealed in an envelope clearly marked for rejected absentee ballots on which the inspectors shall indorse ‘defective ballots’ with a statement of the precinct in which and the date of the election at which they were cast, signed by the inspectors and returned to the same officer and in the same manner as by law provided for the return and preservation of official ballots voted at such election. All absentee affidavit envelopes which have been opened and ballots deposited in the ballot boxes must also be returned in a carrier envelope which is clearly marked ‘used absentee affidavit envelopes’ and shall be returned to the officer who issued such absentee ballots.”

The rule for the construction of election statutes as to whether mandatory or directory, adopted by this court in Sommerfeld v. Board of Canvassers (1955), 269 Wis. 299, 69 N. W. (2d) 235, and Olson v. Lindberg (1957), 2 Wis. (2d) 229, 235, 85 N. W. (2d) 775, is as follows:

“ ‘The difference between mandatory and directory provisions of election statutes lies in the consequence of nonobservance: An act done in violation of a mandatory provision is void, whereas an act done in violation of a directory provision, while improper, may nevertheless be valid. Deviations from directory provisions of election statutes are usually termed “irregularities,” and, as has been shown in the preceding subdivision, such irregularities do not vitiate an election. Statutes giving directions as to the mode and manner of conducting elections will be construed by the courts as directory, unless a noncompliance with their terms is expressly declared to be fatal, or will change or render doubtful the result, as where the statute merely provides that certain things shall be done in a given manner and time without declaring that conformity to such provisions is essential to the validity of the election.’ ”

The appellant Boho cites sec. 5.011, Stats., which provides:

“Construction of title II. Title II shall be construed so as to give effect to the will of the electors, if that can be ascertained from the proceedings, notwithstanding informality or failure to comply with some of its provisions.”

In keeping with sec. 5.011, Stats., this court has quite consistently construed the provisions of election statutes as directory rather than mandatory so as to preserve the will of the elector. Statutes which have been held to be directory and not mandatory and the cases so holding are as follows: Sec. 6.23 (11), State ex rel. Tank v. Anderson (1927), 191 Wis. 538, 211 N. W. 938; sec. 6.32, State ex rel. Bancroft v. Stumpf (1867), 21 Wis. 586 (*579) ; sec. 6.41, Ollmann v. Kowalewski (1941), 238 Wis. 574, 300 N. W. 183; sec. 6.60, State ex rel. Graves v. Wiegand (1933), 212 Wis. 286, 249 N. W. 537; sec. 10.36, State ex rel. Oaks v. Brown (1933), 211 Wis. 571, 249 N. W. 50; sec. 11.55, Petition of Anderson (1961), 12 Wis. (2d) 530, 107 N. W. (2d) 496; sec. 11.59, Sommerfeld v. Board of Canvassers, supra.

In Petition of Anderson, supra, absentee ballots were challenged because applications for the absentee ballots were not made within the time provided by secs. 11.55 and 11.57, Stats. We held therein that the time element as set forth in these statutes was directory and that ballots were valid. In discussing whether election statutory regulations should be construed as mandatory or directory, the opinion at pages 533, 534, states:

“Throughout the statutes with reference to elections the intent of the legislature is apparent. It is to encourage and assist qualified electors to cast their ballots for candidates of their choice. To prevent fraud, the legislature in some instances has specifically stated that there must be strict compliance with a statute or a ballot cannot be counted. In so far as we have been called upon to construe the statutes we have held that where the legislature has provided in explicit language that absentee ballots shall not be counted unless certain provisions of the statute are complied with, compliance with those provisions is mandatory. Where it has not done so expressly and in clear language we have held that the provisions regulating absentee voting are directory, and that strict compliance therewith is not required.”

The Anderson decision was announced on February 7, 1961. Sec. 11.62, Stats., was amended on July 28, 1961, so as to include ballots not containing the name or initials of the issuing municipal clerk. The pertinent portion of sec. 11.62, with emphasis added to indicate the amendment, is as follows:

“In case such affidavit is found to be insufficient, or that the applicant is not a duly qualified elector in such precinct, or that the ballot envelope is open, or has been opened and resealed, or that the ballot envelope contains more than one ballot of any one kind, or if the ballot does not contain the name or initials of the clerk of the issuing town, . . . such vote shall not be accepted or counted.”

The conclusion is inescapable that the legislature has expressly by explicit and clear language provided that an absentee ballot not containing the name or initials of the issuing municipal clerk shall not be counted.

In this instance it appears without dispute that the questioned ballots did not contain the name or the initials of the town clerk. While it equally appears that the ballots were not challenged and put into the ballot box contrary to statutory direction, the trial court found upon ample credible evidence that the questioned ballots were in fact absentee so as to come within the restrictive provisions of sec. 11.62, Stats. Under the mandate of the statute the three questioned absentee ballots, all marked for the appellant Boho, should not have been counted.

The appellant Boho contends that if sec. 11.62, Stats., is mandatory, it is unconstitutional under sec. 1, art. Ill, Const. In support of this argument appellant cites Ollmann v. Kowalewski, supra. In Ollmann several ballots cast at the regular polling place were not initialed by both ballot clerks. One clerk placed his own initials and those of his fellow clerk on the questioned ballots. This court held that sec. 6.41 was directory and not mandatory and that if mandatory it was unconstitutional.

“The voter would not knowingly be doing wrong. And not to count his vote for no fault of his own would deprive him of his constitutional right to vote. Any statute that purported to authorize refusal to count ballots cast under the instant circumstance would be unconstitutional. A statute purporting so to operate would be void, rather than the ballots. And the ballots not being void, should be counted notwithstanding the statute. Voting is a constitutional right, sec. 1, art. III, Const., and any statute that denies a qualified elector the right to vote is unconstitutional and void.” Ollmann v. Kowalewski, supra, page 578.

Ollmann must be distinguished on two grounds. In Ollmann the voter received a ballot with initials marked upon it at a regular polling place. In this instance at the times the voter received the ballot and cast his vote the ballot did not have any authenticating name or initial on it. Further, the ballots in question here are absentee ballots. Clearly, the legislature could determine that fraud and violation of the sanctity of the ballot could much more readily be perpetrated by use of an absentee ballot than under the safeguards provided at a regular polling place.

“While the right of the citizen to vote in elections for public officers is inherent, it is a right nevertheless subject to reasonable regulation by the legislature. State ex rel. McGrael v. Phelps, supra; State ex rel. La Follette v. Kohler (1930), 200 Wis. 518, 228 N. W. 895, and cases cited.
“It is true that the right of a qualified elector to cast his ballot for the person of his choice cannot be destroyed or substantially impaired. However, the legislature has the constitutional power to say how, when, and where his ballot shall be cast. . . .” State ex rel. Frederick v. Zimmerman (1949), 254 Wis. 600, 613, 37 N. W. (2d) 472, 37 N. W. (2d) 473.

We conclude that the legislature could, upon reasonable grounds, require that absentee ballots must be authenticated by the municipal clerk and that a ballot without such authentication could not be counted in calculating the result of a public election.

The judgment of the trial court determining the three questioned absentee ballots cast for the appellant Boho to be invalid, and declaring the respondent Gradinjan to have been elected to the office of town chairman is affirmed.

By the Court. — Judgment affirmed.


author: Hallows, J.

text:
    Anheuser Busch, Inc., and another, Plaintiffs and Respondents, v. Industrial Commission, Defendant and Appellant: Lynch, Defendant.

      January 10

    February 1, 1966.

      For the appellant Industrial Commission the cause was argued by James P. Altman, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and Gordon Samuelsen, assistant attorney general.
    For the respondents there was a brief by Charles W. Sturm and Stephen R. Miller, both of Milwaukee, and oral argument by Mr. Miller.

   Hallows, J.

The trial court decided the case should be remanded to the commission because its finding was inherently ambiguous in that it did not state the hernia was either occupational or traumatic and if traumatic the Industrial Commission had not abided by its standards for determining the sufficiency of the proof for that type of hernia. We agree the finding is not a model one and cannot be justified on the ground the commission need only make findings of ultimate facts. Designating the hernia either occupational or traumatic is not evi-dentiary and making the specific finding is the duty of the commission. If we considered this finding inherently ambiguous, insufficient or defective, we would agree with the trial court and send the case back for reconsideration. Mrs. Drenk’s Foods v. Industrial Comm. (1959), 8 Wis. (2d) 192, 99 N. W. (2d) 172; Johnson v. Industrial Comm. (1958), 5 Wis. (2d) 584, 93 N. W. (2d) 439. We recommend to the commission it make more adequate findings, especially where it reverses the trial examiner.

However, we can and do construe the finding in the light of the facts to be a finding of traumatic hernia and thus binding as such upon the parties and the commission. The alleged hernia was not claimed or considered by Lynch to be occupational. It was not so considered by the trial examiner. There is no medical testimony that it was occupational and the respondent employer does not claim it was an occupational hernia. The failure of the commission to expressly negate a hernia of occupational origin does not on the facts imply the possibility of such hernia.

This brings us to the question of whether the evidence sustains the finding of a traumatic hernia. It is claimed the evidence is not sufficient because it does not meet previous standards set forth in the cases of Meade v. Wisconsin Motor Mfg. Co. (1918), 168 Wis. 250, 169 N. W. 619, and McCarthy v. Sawyer-Goodman Co. (1927), 194 Wis. 198, 215 N. W. 824. In Meade we justified standards promulgated as reasonable and approved their use as guidelines by the commission to determine the sufficiency of the proof. The standards included an accident capable of producing a hernia and the appearance of the hernia and disabling pain immediately after the accident. In McCarthy, in affirming an order of the Industrial Commission denying recovery for an alleged traumatic hernia, we stated the order was supported by various considerations including: (1) Inguinal hernia is rarely of traumatic origin; (2) it is generally of traumatic culmination; (3) when of traumatic origin, the pain is so severe as to disable the subject from work; (4) the applicant continued his work with but a few minutes respite, contrary to the general history of traumatic hernia; and (5) he did not notify his employer for two weeks after the accident.

In the present case the hernia did not result in pain so severe as to disable Lynch from work and in fact he continued to work the day of the accident and for some six months until the hernia was corrected by surgery. However, supporting the finding of the commission is the nature of the work, i.e., the actual lifting of a heavy garbage can which could cause a hernia and the A-16-b report of Dr. Davis who considered the hernia was probably caused by such lifting. Such opinion is sufficient under the rule of Unruh v. Industrial Comm. (1959), 8 Wis. (2d) 394, 99 N. W. (2d) 182. In addition, the doctor explained in his letter that during the surgery his exploration disclosed a direct hernia through a rent in the fascia or supporting fibrous tissue of the abdominal wall but no indirect hernia or sac as would be found in the more usual congenitally weak inguinal canal. In his opinion his findings were typical of a traumatic hernia. The sense of pain for fifteen or twenty minutes although not disabling, the noticing of a lump within two days, the diagnosis of a rupture within four days of the accident and the fact that within sixty days prior to the accident and before starting to work Lynch had a physical examination which disclosed no hernia also help to support the finding.

If the guidelines are to be rigidly followed, the Industrial Commission would have to reject the testimony of the doctor as being incredible. This the Industrial Commission could do because the testimony conflicted with its expertise as expressed in the standards. However, the Industrial Commission chose to believe the testimony of Dr. Davis. The question is, must the commission follow its standards and guidelines?

This precise question was presented in Prentiss Wabers Products Co. v. Industrial Comm. (1939), 230 Wis. 171, 283 N. W. 357, where it was similarly contended the commission in finding a traumatic hernia had departed from the rules set forth in the Meade and McCarthy Cases. In Prentiss, like in the instant case, there was no immediate disability of a serious character and this court stated the standards did not constitute any fixed and unchangeable rule of law by which every finding of the commission in this field had to be tested. And, the question on appeal was not whether the findings conformed to some standards of proof previously set but whether there was credible evidence to sustain the finding. Since the commission found a traumatic hernia although there was no immediate disabling pain, we must sustain the finding as involving one of those rare inguinal hernias of traumatic origin.

In Davis v. Industrial Comm. (1964), 22 Wis. (2d) 674, 126 N. W. (2d) 611, involving a herniated disc of the type of injury presented in Brown v. Industrial Comm. (1960), 9 Wis. (2d) 555, 101 N. W. (2d) 788, and in Theisen v. Industrial Comm. (1959), 8 Wis. (2d) 144, 98 N. W. (2d) 446, we stated the Meade and McCarthy Cases were not necessarily overruled by those decisions. We do not consider such cases overruled by this decision. We see no conflict between Meade and McCarthy on the one hand and Theisen and Brown on the other. The “as is doctrine” of an employee’s condition and the nonneces-sity of proving unusual stresses or strain in herniated-disc cases do not necessarily make an occupational injury a traumatic one or a nonindustrial injury an industrial one. The concept of occupational disease or injury for which several employers may be liable is not repugnant to the “as is doctrine” involving traumatic injury.

The respondent Anheuser Busch in its petition for review argues that all the evidence supports the trial examiner’s finding the hernia was neither occupational nor traumatic in origin and therefore the application should be dismissed on its merits. The findings this court reviews on appeal are those of the Industrial Commission, not those of the trial examiner and we cannot ignore and jump over the findings of the Industrial Commission to reach those of the examiner which were set aside. Since we believe the commission could make the findings it made, the judgment of the circuit court should be reversed with directions to affirm the order of the Industrial Commission.

By the Court. — Judgment is reversed with directions to affirm the order of the Industrial Commission.


text:
    Winnebago Homes, Inc., Plaintiff and Appellant, v. Sheldon and wife, Defendants: Advance Mortgage Corporation, Garnishee Defendant and Respondent. Winnebago Homes, Inc., Plaintiff and Appellant, v. Advance Mortgage Corporation, Defendant and Respondent: Sheldon and wife, Defendants.

      January 10

    February 1, 1966.

      For the appellant there was a brief by Camp & Camp of Wauwatosa, and oral argument by Mark M. Camp.

    For the respondent there was a brief by Hersh & Magidson, attorneys, and Harry Lensky and Robert L. Hersh of counsel, all of Milwaukee, and oral argument by Arthur B. Magidson.

   Gordon, J.

This appeal presents a dispute between a builder and a lender. The Sheldons, for whom the builder agreed to construct a house and to whom the lender agreed to supply funds, have not participated in the appeal. The Sheldons have gone through bankruptcy, and in the wake thereof are the two disputants now before this court.

We must determine whether the trial court was correct in denying recovery to the builder. Winnebago Homes advances three principal arguments in support of its claim that Advance Mortgage should be required to pay the unpaid balance owed for the construction. First, Winnebago Homes claims that it is a third-party beneficiary of the contractual arrangement entered into between Advance Mortgage and the Sheldons.

As a second contention, Winnebago Homes argues that it is entitled to payment upon the theory of promissory estoppel which arose by reason of Advance Mortgage’s representation that payment would be made upon completion of the construction.

Finally, it is contended that the garnishment action which Winnebago Homes commenced against Advance Mortgage, with the Sheldons as principal defendants, entitled Winnebago Homes to the amount which remained unpaid by Advance Mortgage to the Sheldons.

Winnebago Homes as a Third-Party Beneficiary.

The trial court rejected the theory that the note and mortgage were executed for the benefit of Winnebago Homes, and we share that conclusion.

The trial court was correct, in our opinion, in relying upon State Department of Public Welfare v. Schmidt (1949), 255 Wis. 452, 455, 39 N. W. (2d) 392, where it was pointed out that “to entitle the third person to recover upon a contract made between other parties, there must not only be an intent to secure some benefit to such third person, but the contract must have been entered into directly and primarily for his benefit.”

There was no promise, either express or implied, that Advance Mortgage was to pay the amount of the loan to Winnebago Homes even if the Sheldons were in default or even if FHA insurance was never issued. The lender’s commitment to supply the money to the Sheldons was circumscribed with numerous conditions. In order to entitle a stranger to a contract to recover thereon, the contract must indicate an intention to secure some benefit to such third party. Rowe v. Moon (1902), 115 Wis. 566, 569, 92 N. W. 263; Electric Appliance Co. v. United States Fidelity & Guaranty Co. (1901), 110 Wis. 434, 439, 85 N. W. 648.

Our examination of the relevant instruments persuades us that there was no contract wherein Advance Mortgage agreed to do anything for the benefit of Winnebago Homes. While the latter may have indirectly benefited from the agreement, such benefit was only incidental to the agreement between the mortgagor and the mortgagee. However, even if an express promise to pay Winnebago Homes could be spelled out of these instruments, we see no reason why it would not be subject to the same conditions that existed between the principals to the agreement. Thus, if Advance Mortgage did not have to pay the moneys to the Sheldons because FHA insurance was not obtained, this condition should preclude any responsibility by Advance Mortgage to Winnebago Homes. In Watkins v. Watkins (1933), 210 Wis. 606, 612, 245 N. W. 695, this court stated:

“It has been repeatedly held by this court, however, that when a right has been created by contract, the third party claiming the benefit of the contract takes the right subject to all the terms and conditions of the contract creating the right.”

Promissory Estoppel.

Winnebago Homes urges that the lender induced it to complete the construction contract by promising final payment upon completion. According to the plaintiff, this promise was made when the builder requested further payments from the lender. In response to this request, it is claimed that the lender directed that the building be completed and that upon completion the balance would be paid.

This court has recognized that a cause of action may arise under circumstances covered by Restatement, 1 Contracts, p. 110, sec. 90. This section provides:

“A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”

See Hoffman v. Red Owl Stores, Inc. (1965), 26 Wis. (2d) 683, 696, 133 N. W. (2d) 267.

The respondent points out that the theory of estoppel was not pleaded and therefore may not be raised by the builder. This contention is supported by National Farmers Union Property & Casualty Co. v. Maca (1965), 26 Wis. (2d) 399, 408, 132 N. W. (2d) 517, Mack Trucks, Inc., v. Sunde (1963), 19 Wis. (2d) 129, 139, 119 N. W. (2d) 321, and Megal v. Kohlhardt (1960), 11 Wis. (2d) 70, 82, 103 N. W. (2d) 892.

While we think that this prevents the plaintiff from successfully relying upon the theory of promissory estop-pel, we are also of the opinion that this contention would fail on its merits. This is because the so-called promise on the part of the lender may not fairly be construed to constitute an unqualified promise to pay upon completion. We believe it is clear that the payment by Advance Mortgage was necessarily conditioned both upon the Sheldons’ authorizing it and also the lender’s obtaining FHA insurance on the loan. The latter point distinguishes this case from Anglo-American Asso. v. Campbell (1898), 13 App. D. C. 581, 43 L. R. A. 622, which case is relied upon by the appellant. In the Anglo-American Case, at page 602, the court specifically concluded that there were no contractual conditions which would justify the lender’s withholding of a portion of the allotted funds.

The construction company either knew or should have known that the disbursement of the funds by the lender was conditioned upon the FHA’s insuring this loan. We think it unrealistic to hold, as the appellant proposes, that Advance Mortgage estopped itself from refusing to make payment to the builder even though FHA insurance was not ultimately procured. This is particularly true since the failure to obtain FHA insurance was not through the action or inaction of the lender.

The Effect of Garnishment.

By commencing the garnishment action against the Sheldons as principal defendants and against Advance Mortgage as garnishee defendant, it is claimed by the appellant that it obtained an equitable lien on the funds which were allocated by the lender for this loan.

We do not believe that the builder can lift itself up by its bootstraps so as to succeed on the merits by reason of any collateral proceedings in garnishment.

The flaws in the plaintiff’s case which preclude its recovery against Advance Mortgage remain operative notwithstanding the garnishment proceedings. Sec. 267.18 (4), Stats., holds in substance that one is not liable as garnishee by reason of anything owing upon a contingency. The record in this case establishes that any obligation which Advance Mortgage had to the Sheldons was contingent upon the procurement of FHA insurance. The Sheldons themselves could not have forced Advance Mortgage to pay over the allocated funds without fulfilling the FHA requirements; thus, the plaintiff could not require this act to be done. Grant County Service Bureau v. Treweek (1963), 19 Wis. (2d) 548, 554, 120 N. W. (2d) 634.

By the Court. — Judgment affirmed.