Jeleniewski v. Eck , 175 Wis. 497 ( 1921 )

Jones, J.

Evidently with some reluctance the trial court entered judgment for defendants notwithstanding the verdict of the jury, acting on the theory that the representations relied on were' mere expressions of opinion or intent to do something in the future, and not representations of an existing fact or a past event. As the trial court said in the opinion;

“There is no dispute .that the general rule is that statements or representations as to future or contingent events or as to expectations or probabilities, or as to what will be or is intended to be done in the future, do not constitute actionable fraud.” Patterson v. Wright, 64 Wis. 289, 25 N. W. 10; Sheldon v. Davidson, 85 Wis. 138, 55 N. W. 161; J. H. Clark Co. v. Rice, 127 Wis. 451, 106 N. W. 231; 12 Ruling Case Law (Fraud and Deceit) §§ 19-21. See note in 10 L. R. A. n. s. 640.

In their special verdict the jury found that defendants represented that the building would be ready for occupancy May 1, 1920; that the false representations were made as a statement of existing fact; that they were untrue and were recklessly made and with intent to deceive and to induce plaintiff to act upon them; that h# did rely- upon them and was induced to enter into a contract for- the leasing of the building, and to purchase a stock of goods for his business and to- sell his personal property on the farm; and that when the representations were made defendants did not intend to comply with the building ordinances so that an occupancy permit would be issued by May 1, 1920.

Although it is elementary that mere broken promises do not constitute actionable fraud, it is not so clear that an action for fraud may not be predicated upon a false statement of present intent, which is material, made with intent to deceive, and relied on by the other party. There is much authority for the view that a condition of mind is as much a fact as a condition of the body, although more difficult to prove; and that therefore a misstatement of a man’s mind is a misstatement of fact. In the present case the promise was coupled by the proof with present intent to bréale it. The cases supporting the contention that such representations are actionable-will be found collected in 12 Ruling Case Law (Fraud and Deceit) § 28. There is also authority for the contrary view in 12 Ruling Case Law, p. 262, § 29, and the case of Tufts v. Weinfeld, 88 Wis. 647, 60 N. W. 992, tends to support the view of the trial court, although the subject was not discussed in the opinion of the court.

But we have come' to the conclusion that the present case should be decided on another ground. Although the complaint sounded in tort and alleged the fraud of defendants, the undisputed testimony showed that defendants agreed to have the building ready for occupancy at a given date; that the plaintiff relied and acted on the agreement and carried out his part of the contract. There was every element essential to a valid contract. If the defendants acted fraudulently, as the jury found, that did not vitiate the contract as to the p^arty damaged. The undisputed testimony showed, as the jury found, that plaintiff sustained damage in the sum of $600.50.

Under the old procedure there was a gulf between actions for fraud and those on contract which could not be bridged. Under that procedure if a plaintiff failed to prove the fraud alleged, although there might be clear proof of a contract, he would be turned out of court. He could curse the law’s delays, pay the costs, and, if not discouraged, could frame new pleadings, sue on contract, rally his witnesses again, enter the court through another door, and, if all went well, recover judgment. We are very glad that under existing statutes we can shorten the plaintiff’s road to justice, and but for the provisions of sec. 2836b, Stats., we should direct that judgment be entered for plaintiff pursuant to sec. 2405m, Stats. Knudson v. George, 157 Wis. 520, 147 N. W. 1003.

Although the record as it comes to us shows that the contract was made, the case was tried on the theory of fraud, and it may be claimed by defendants that they have the right to introduce further proof that they did not enter into any agreement to have the building ready for occupancy as alleged by the plaintiff. When the cause of action is changed from tort to one on -contract, the statute, sec. 2836b, seems to require that the complaint be amended and for further proceedings in the same action. Jilek v. Zahl, 162 Wis. 157, 155 N. W. 909; Cronin v. Janesville T. Co. 163 Wis. 436, 158 N. W. 254.

Therefore the plaintiff should be required to amend the complaint and the parties should be allowed to give such further proof as may then be relevant.

By the Court. — Judgment reversed, and action remanded for- further proceedings in accordance with this opinion.