(dissenting). I think the permitting of this judgment for damages to stand is establishing a danger*362ous precedent and is a departure from wbat bas heretofore been the steady course of this court both as to the measure of damages and in denying relief to persons who come into court relying upon a contract which is contrary to good morals and public policy.
It is suggested in the majority opinion in this case that plaintiff parted with his property upon the representation of the defendants that the Mercedes tract of 280 acres was worth $150 an acre and marketable; and further, in effect, that this contract was a guaranty by defendants to plaintiff that this tract was of such value and marketable. The contract itself, however, does not say so. It was drafted by an attorney for the plaintiff, and expressly provided that the defendants “shall sell the said 280 acres of land for the said Ernest Trumpf within the said period of time [namely, in one year], at the rate of not less than $150 per acre.” It further provided in paragraph “J” of the contract for a commission of $1,000 to be paid or allowed by the plaintiff for the sale of his property. So that the language of the contract itself plainly provides that the parties contemplated, not a purchase by the defendants or a guaranty of price, but a sale by the three parties to others than defendants. The plaintiff agreed in the contract to devote a reasonable amount of time and effort of his own in assisting such sale, and the first question in the special verdict as set forth in the statement of facts shows that the jury expressly find that he did give such time as he reasonably could to securing the buyers and assisting in selling the 280 acres. So that not only does the contract itself provide that it is a selling contract, but the plaintiff himself, in the most unmistakable way, treated it as such, and should be bound by such treatment of it and. by its language. According to his own statement he did devote his time almost daily for the year in trying to dispose of the property. He caused to be sent out over his own name as agent circular letters with reference to this property and *363also advertised the same in country newspapers. These circulars and advertisements picture the property to be disposed of in the most extravagant and alluring terms and in a manner that would have done credit to the late lamented Colonel Sellers. He describes the valley in which the property is found, with commendable reticence, to be very nearly as fertile as lands in Egypt on the river N ile; that land procurable at $5 to $10 an acre ten years before is now selling for $200 per acre in its wild state, and when improved for a great deal more; that this was the ideal farm land, netting the farmer from $50 to $500 per acre, and yet where labor was to be procured at from fifty cents to $1 a day and the laborers board themselves; that he had seen as high as 100 bushels of corn per acre taken from a field of forty acres. He suggests that the friends of the recipients of the circulars be permitted to read them, thus plainly indicating that he was reaching out into a broad field for such sale.
On the trial plaintiff’s counsel expressly takes the position that this was not an action on the ground of false representations by the defendants as to the value of this property. On the plaintiff’s adverse examination he expressly states that at the time he examined the property prior to the proposed contract in July he did not think that that tract was the right kind of land. He did not think it would sell. He did not rely on what the defendants told him in regard to that land. He did think and believed that the 389-acre tract was better land than the other and ho thought that that piece could be sold for $150 an acre. He did not place any particular value at that time on this Mercedes tract and, though repeatedly asked, he cannot tell what valuation he placed upon it at the time. He did not figure on any basis, in making the contract, on the price of that 280 acres. So that from his own testimony he could not have relied upon a representation by defendants, if any was made, as to the value of the land, even if it be conceded that such a representation *364were one of a nature upon which an action for fraud or deceit could be predicated.
It is, however, immaterial what name is used to describe the contract between the parties. This is nothing but an action bj plaintiff against the defendant to recover damages for the breach of the written contract of September 6th and is not founded upon any claim of fraud.
As measure of damages the judgment awards the plaintiff the difference between the $16 an acre, being the value found by the jury to exist at the expiration of the year after the date of the contract, and the $150 per acre, the selling price specified in the contract; and" in addition to that the plaintiff retains the land itself. In an action upon a contract the question of damages for its breach is solely one of indemnity. Barnes v. Brown, 130 N. Y. 372, 384, 29 N. E. 760.
If there be any doctrine in the law of damages that seems to be fairly and firmly established in this state it is that for a breach of contract the limit of recovery is such damages as may be reasonably considered to have been in contemplation of the parties at the time of the making of the contract as the probable result of the breach of it. McLennan v. Church, 163 Wis. 411, 422, 158 N. W. 73.
This means, I take it, that what may reasonably be considered to have been in contemplation of the parties at the time of the making of the contract is in effect written in, by implication of law, to the contract itself as the standard or measure by which to determine, when the contract is breached, the damages for such breach. If $15 or $16 was the fair, reasonable market value of the land on September 6, 1913, and the following year, when the contract is relied upon by the plaintiff for-the purpose of recovering $134 an acre against the defendants as damages for its breach under the standard recognized by this court, it seems to me a strange rule of law or logic that prevents it being considered as within the contemplation of the parties as the fair market value of the property when the effect of such a contract upon tho *365general public, who were the object of it, is to be considered. The plaintiff ought not be permitted to have this fair market value of the property considered as in contemplation of the parties when they made the contract, when he relies upon it for the purposes of his recovery of such enormous damages as compared to its real value as shown by him, and then insist that the court shall shut its eyes to such fact and the finding of the jury thereon when the court is required to scrutinize the same contract to determine, of its own right and to protect its own dignity, whether or not such a contract is contrary to public policy. The result of sustaining this measure of damages is in effect to say that there was, by implication, written into the contract a provision to the effect that, contemplating at the time we make this agreement that the fair and reasonable value of this 280-acre tract is $15 per acre, we will, the three of us, undertake to dispose of it to whomsoever we can induce to buy it at a price that shall be no less than sufficient to return us the $15 tenfold. Eor i£ the parties are not chargeable with knowledge, as of the time' of the making of the contract, that it was worth but $15 or $16 an acre, how can it be held that this value suddenly pop® up when damages are to be assessed between the parties for a breach of it, and yet is dormant or nonexistent when considering the effect this same contract would have upon the general public, for whom it was loaded and at whom it was aimed ?
If they should be chargeable with knowledge of the vast difference in price between $15 and $150 per acre for land in the vast state of Texas, where if anywhere land can be-considered nearer a superfluity than a monopoly, then it must follow that to agree to dispose of it at that maximum price on a necessarily credulous and gullible public is a scheme to defraud, and a contract requiring for its fulfilment such necessary legerdemain or peculiar financial ability ought not to have the stamp of approval.
This contract is not like those in which there is an agree*366ment by wliicb tbe vendor gets back that with which he parted by his agreement to repurchase upon demand, as in the case of Vohland v. Gelhaar, 136 Wis. 75, 116 N. W. 869, where an agreement to buy back at $1 per share stock sold at fifty cents per share was upheld, or to buy back corporate stock at the same price at which it was sold, as in Hankwitz v. Barrett, 143 Wis. 639, 128 N. W. 430, the doctrine of these cases being again recognized in Korrer v. Madden, 152 Wis. 646, 649, 140 N. W. 325.
It makes no. difference that the defendants themselves claimed on the trial, or even assert in this court, that the lands in question were as a matter of fact worth $150 per ■acre, or that the question of fraud was not pleaded. The -court does not listen to the one nor wait for the other, but acts of its own accord and with no other promptings than to uphold the dignity of the law. Wight v. Rindskopf, 43 Wis. 344; Rock v. Ekern, 162 Wis. 291, 295, 156 N. W. 197; Decker v. Becker, 143 Wis. 542, 128 N. W. 67; Kreamer v. Earl, 91 Cal. 112, 27 Pac. 735; Boyd v. Topham, 47 Utah, 224, 152 Pac. 1185; 14 Cyc. 458.
If a contract is entered into which has for its purpose a fraud on a third person or on the public, it is subject to the condemnation of the court and not to its commendation. The following are some of the instances in which this court has treated contracts as contrary to such public policy: To prevent competitive bidding at judicial sales where a fraud on a third person is worked (Schmitt v. Franke, 160 Wis. 347, 151 N. W. 793) ; to enable a person to obtain unlawful advantages in voluntary assignment proceedings (Lowe v. Crocker, 154 Wis. 497, 143 N. W. 176) ; if it tends to induce the commission of unlawful acts on the part of the parties to it in procuring evidence or permitting of traffic by the parties with persons guilty of larceny (Manufacturers & M. I. Bureau v. Everwear H. Co. 152 Wis. 73, 83, 138 N. W. 624); if it contemplates a series of sales bound in the end *367to result in some one being defrauded (Twentieth Century Co. v. Quilling, 130 Wis. 318, 110 N. W. 174).
Tbe contract here might well take its place in the public pillory alongside the Bohemian Oats Cases (Knight v. Linzey, 80 Mich. 396, 45 N. W. 387; Schmueckle v. Waters, 125 Ind. 265, 25 N. E. 281) ; or the getting of $60 worth of buggies by the disposing of coupons costing the individual at the first end of the chain $3.75, as in Hubbard v. Freiberger, 133 Mich. 139, 94 N. W. 727; 9 Cyc. 462; 6 Ruling Case Law, 721. It seems self-evident that the parties to this contract, by agreeing to sell Texas land at $150 per acre that is actually worth $15 an acre,, are chargeable as a matter of law with knowledge that it can be disposed of only to a credulous and unsophisticated public by means of fraud, and that no man, except he be taken advantage of by the strong arm or the superior intellect of a sharper, will buy land in the almost limitless bosom of Texas for $150 an acre that is worth no more than $15 per acre.
The case relied upon by the court below and the cases presented by the respondent here present no such situation as would meet the facts in this case. In Dunn v. Mackey, 80 Cal. 104, 22 Pac. 64, the agreement was to sell for $12,500 property of the value of $9,000. Sprague v. Hart, 11 Cal. App. 782, 106 Pac. 590, was not an action for damages, hut an equitable action in which the plaintiff was entitled to security to the amount which he had paid out and no more. In Ross v. Goldridge M. Co. 14 Idaho, 687, 95 Pac. 821, defendant bought 25,000 shares of mining stock at two cents per share which he guaranteed to sell at five cents per share, the amount involved being $750, and no question of exorbitancy was raised. And in Brown v. Massey, 138 Mo. 519, 38 S. W. 939, the agreement to repurchase was at a profit of ten per cent.
It is true that it appears that no one was induced to buy any of this land at this price. They had a few who nibbled *368but none who bit, in spite of tbe efforts and expense of tbe plaintiff in tbis enterprise. But it is never necessary that barm should bave actually resulted to some one of tbe public in order to change a contract contra bonos mores to one entitled to tbe respect of and enforcement by tbe court. 9 Cyc. 481; Walsh v. Hibberd, 122 Md. 168, 89 Atl. 396; Firemen’s C. Asso. v. Berghaus, 13 La. Ann. 209.
It is quite plain that if any one bad been sufficiently enticed to purchase tbis property at $150 an acre during tbe year in question upon the representations shown to bave been made to tbe public by tbe plaintiff or defendants in tbis action, tbe parties in tbis action, or any one of them, might well .have been required to disgorge such purchase money in an -action brought by such purchaser on tbe ground of fraud and -deceit upon just such evidence as has been produced in tbis «lase by tbe plaintiff himself as to the nature and character of tbe property. There could bave been no contribution from tbe defendants bad tbe plaintiff been required in such action to repay tbe full amount of such purchase money, because tbe three would bave been joint tortfeasors. Yet in tbis action tbe effect of tbe judgment is to permit tbe plaintiff to recover and retain substantially tbe same amount that be could haye been required to disgorge if tbe contract that be entered into bad been executed, according to its language, its intent, and tbe practical construction given to it by tbe parties themselves.
' I think tbe complaint should have been dismissed. I am authorized to state that Justice Kehwix agrees with me in tbis dissent.