Cawker v. Seamans

Cassoday, 0. J.

It appears from the record that October-28, 1891, the defendant gave to the testator of the plaintiffs a promissory note bearing date on that day, for $500, due July 1, 1894, and interest thereafter, in part payment of the purchase price of what was known as the “United States Miller and Milling Engineer,” a trade paper, which-had been published in Milwaukee by such testator; and the-plaintiffs brought this suit upon that note to recover the amount thereof. The defendant answered, and admitted the making of the note, and alleged, by way of defense and setoff or counterclaim, that such purchase was made-upon the express representations made by said testator to-induce the purchase, to the effect that the said “ United' States Miller and Milling Engineer ” had an actual circulation. *329 of at least 1,000 Iona Repaying subscribers, who were regularly paying therefor a sum exceeding $1,000 annually, and! that it also had a large amount of actual, live, paying advertisements, inserted in such paper by actual, Iona fide,pay-ing advertisers, who were then patrons of such paper, and who were then paying therefor a sum exceeding $2,500 annually ; that the defendant relied upon such representations-' and purchased said property upon the strength thereof; that such representations were in fact false, to the damage of the defendant; and that such damages be adjudged to be a setoff and counterclaim to the amount of the note. The plaintiffs replied to the counterclaim. At the close of ^he trial the court directed a verdict in favor of the plaintiffs for $524.25; and from the judgment entered thereon, the defendant brings this appeal.

• There was evidence on the part of the defendant tending1 to prove that the testator had admitted that he made such representations to the defendant and thereby induced him to make such purchase, and that such representations were-false in several particulars. The evidence in the case was sufficient to take the case to the jury; and hence it was-error to direct a verdict in favor of the plaintiffs. As there1 must be a new trial, it is unnecessary to say more.

By the OouH.— The judgment of the superior court of Milwaukee county is reversed, and the cause is remanded for a new trial.