#### Francois, Appellant, vs. Cady Land Company, Respondent.

*March 12*

April *3, 1912.*

*Deceit: ~When actionable: Opinions as to value of property: Statute of frauds: Oral contract of guaranty: Pleading: Amendment: Changing action from contract to tort.*

1. A false representation must *be*relied and acted upon in order to-be actionable.

2. Statements as to tbe value of property about to be sold, where inspection is open to tbe buyer, are ordinarily regarded as mere expressions of opinion, and will not be regarded as statements, of fact on wbicb actionable fraud can be based, in tbe absence of extrinsic circumstances, like fiduciary relations or artifice, by wbicb tbe buyer is prevented from making investigation bimself.

3. A contract by wbicb tbe vendor of a note and mortgage executed by a third person guarantees payment thereof is a contract to-answer for tbe debt, default, or miscarriage of another, and is. void, under see. 2307, Stats. (1898), if not in writing.

4. An amendment wbicb does not state facts showing an actionable. tort does not change a complaint from one on contract to one, in tort.

Appeal from a judgment of the circuit court for Brown, county: S. D. HastiNgs, Circuit Judge.

*Affirmed.*

The defendant is a corporation dealing in real estate and real-estate securities at Green Bay. On October 8, 19 07, the-plaintiff purchased from the defendant at par the note of one John Mosuch and wife for $2,300, due three years after its-date (viz. September 14, 1907), secured by a mortgage upon a lot and building thereon in the city of Oshkosh, which the *116plaintiff bad never seen. Tbe plaintiff bad previously pur-•cbased of tbe defendant several securities of tbe same kind, and be alleged in bis complaint

“That said *Joseph P. Francois*bad for some time purchased from tbe *Gady Land Gompany*other notes held and owned by it. That it was tbe understanding and agreement by and between said *Gady Land Gompany*and said *Joseph P. Fra/ncois,*that said *Gady Land Gompany*should stand back of, make good, and guarantee collection and payment of all notes, mortgages, or other evidences of indebtedness which said plaintiff should at any time purchase for it. And it was understood and agreed by plaintiff and defendant that said *Gady Land Gompany*would stand back of, make good, and guarantee tbe payment and collection of such note of John and Elizabeth Mosuch. And that if said makers did not pay the same according to tbe tenor of tbe note and mortgage hereinafter referred to, then said *Gady Land Gompany*would itself pay tbe same.

“That said plaintiff is a man unskilled in business ways and especially as to legal matters, and relied in tbe transaction herein set out upon said defendant, and bad no attorney or ether legal advice, but depended upon said defendant and its promises aforesaid.”

Tbe complaint further alleged that tbe real estate described in tbe mortgage was not worth tbe face of tbe mortgage, and that tbe defendant knew tbe fact at tbe time of tbe sale, that tbe interest due September 14, 1908, was unpaid, that tbe makers of tbe note are insolvent, that tbe mortgage was duly foreclosed and tbe property sold, from which sale tbe plaintiff received to apply on bis debt $1,627.10, leaving a balance unpaid of $1,097.16, for which judgment was demanded against the defendant.

Tbe action was tried before a jury, and tbe following special verdict was rendered:

“(1) Did tbe defendant at tbe time it sold tbe note and mortgage in question to tbe plaintiff agree with him, as part of tbe contract of said sale, that it would stand back of and make good the same ? *A.*No.

*117“(2) Did tbe defendant represent to said plaintiff, while negotiating said sale, that tbe mortgaged property was worth $4,500 *1 A.*Yes.

“(3) If your answer to tbe second question should be Tes,5 then answer this: Did the plaintiff buy said note and mortgage relying upon said representation ? *A.*Yes.

“•(4) What was the fair market value of said mortgaged property at the time of said sale ? *A.*$2,700.”

The court made an additional finding of fact to the effect that “all representations made by said defendant or its agents as to the value of the mortgaged property were made honestly and in good faith, and without intent on the part of the defendant or its officers to induce the plaintiff to forego independent investigation as to the true value of said land.”' Thereupon the court dismissed the complaint, and the plaintiff appeals.

*Sol. P. Huntington,*for the appellant.

For the respondent there was a brief by *Gady, Sirehlow & Jaseph,*and oral argument by *Samuel H. Cady.*

WiNsnow, C. J.

The action was brought upon a supposed contract of guaranty. This is apparent from the complaint. Upon the trial the plaintiff’s evidence showed that the defendant’s agent, at the time plaintiff purchased the mortgage, represented that the mortgaged property was worth somewhere from $4,500 to $5,000, and that he relied upon the representation. The defendant’s agent admitted that he stated that in his opinion it was worth $4,500. At the close of the evidence in the case and on June 16, 1911, the plaintiff was allowed to amend his complaint by adding after the allegation that the mortgaged real estate was not worth the face of the mortgage and that the defendant knew that fact, the following words: “but represented to the plaintiff that said property was worth $4,500, but as matter of fact it was not worth more than $2,000.” The reason for the making of this amendment is not obvious. If the idea was to state a cause of action in tort *118for damages caused by false and fraudulent representations it was entirely insufficient, because it did not allege that tbe plaintiff relied upon tbe alleged representation in making tbe purchase. A false representation must be relied and acted upon in order to be actionable. *Puffer v. Welch,*144 Wis. 506, 129 N. W. 525. So tbe amendment did not change tbe complaint from contract to tort, even conceding that such a change could have been properly made under tbe provisions of cb. 353 of tbe Laws of 1911 (sec. *2669d,*Stats.), allowing tbe making of amendments changing a cause of action from contract to tort, which act took effect June 17, 1911.

If it be argued that tbe form of tbe pleading should be disregarded, that tbe evidence of fraud came in without objection, and that, tbe verdict having determined tbe fact of reliance, there should be judgment for tbe plaintiff thereon, tbe answer is that there is no finding that tbe representation of the value of tbe mortgaged property was a representation of fact. It is very well known that statements of tbe value of property about to be sold, where inspection is open to tbe buyer, are ordinarily regarded as merely expressions of opinion, and will not be regarded as statements of fact on which actionable fraud can be based, in tbe absence of extrinsic circumstances, like fiduciary relations or artifice, by which tbe vendee is prevented from making investigation himself. *Horton v. Lee,*106 Wis. 439, 82 N. W. 360. There was no finding of any such extrinsic circumstances here, and no request by tbe plaintiff to submit any questions covering such matters. It must be considered, therefore (conceding that the questions were material), that they were determined by tbe circuit judge in conformity with tbe judgment. Sec. *2858m,*Stats. (Laws of 1907, ch. 346). Indeed, tbe finding actually made by tbe court seems in effect to cover tbe question and make tbe expression relied upon simply an opinion. These considerations dispose of tbe tort features of tbe case, if any there be.

*119As to tbe contract feature little need be said. It is clear that if there was any contract at any time it was a contract to answer for the debt, default, or miscarriage of another, and such contracts are void if not in writing. Sec. 2301, Stats. (1898). The reasons’why there can be no recovery on contract seem to be so numerous as to be almost embarrassing: (1) The jury found as a fact that none was made at the time of the sale; (2) if any promise was made before the sale, the evidence shows that it was nothing more than a naked promise without consideration of any kind; (3) whether made before or at the time of'the sale, it was void because not in writing.

*By the Court.*— Judgment affirmed.