Bassford v. Cook
| Decision Date | 22 April 1963 |
| Docket Number | No. 20058,20058 |
| Parties | Forrest BASSFORD and Marian Bassford, Plaintiffs in Error. v. Paul W. COOK and Althea G. Cook, Defendants in Error. |
| Court | Colorado Supreme Court |
Hiester, Tanner & Clanahan, Bill Earl Tom, Denver, for plaintiffs in error.
Joseph W. Opstelten, Denver, for defendants in error.
We will refer to the parties as they appeared in the trial court where plaintiffs in error were plaintiffs and defendants in error were defendants. Plaintiffs sought rescission of an executed contract by which they had purchased a residence from the defendants. Trial to the court resulted in a judgment for the defendants and plaintiffs are here by writ of error seeking reversal.
Plaintiffs, in their complaint, alleged that (a) defendants misrepresented and concealed material existing facts in that the defendants, with knowledge that there were soil problems under their house, nonetheless informed plaintiffs that there were no soil problems and that certain cracking of the house was due to normal settling of a new home; (b) plaintiffs were ignorant of the falsity of defendants' representations; (c) defendants' misrepresentations were made with the intention that plaintiffs should act upon them; and (d) the plaintiffs did rely and act on the misrepresentations made by defendants to their detriment.
Since the trial court found for the defendants, the scope of our review is limited to a consideration of the evidence in the light most favorable to the defendants, and every inference fairly deducible therefrom drawn in favor of the judgment. House v. Smith, 117 Colo. 305, 187 P.2d 587; Hyman & Co. v. Velsicol Corp., 123 Colo. 563, 233 P.2d 977.
Viewed from the perspective most favorable to the prevailing parties, the evidence here shows that in 1957 the defendants purchased a new home in the Holly Hills area of Arapahoe County for their personal residential use. At the time of purchase the defendants were aware of cracks located in the interior walls of the house. After they had resided in the house for some months, additional and more severe cracking occurred and an engineer specializing in building foundation problems was employed to investigate the cracking and recommend corrective measures.
The engineer found that there was some movement of the exterior bearing walls of the structure and of the foundations supporting a garage wall. The engineer recommended corrective measures consisting of jacking up the house and releveling all interior bearing walls and installing drain pipe extensions to carry roof water away from the structure's foundation. The defendants accepted this recommendation and ordered the work done. A written report stating the causes of the cracking and the corrective measures carried out was sent by the engineer to the defendants. The engineer orally advised the defendants that the movement was caused by settling and that the corrective measures undertaken by him would remedy the entire situation.
A few months after the corrective work had been completed the defendants, then in financial difficulty, listed their home for sale. Plaintiffs had been seeking a home in the Denver area and were shown the defendants' house by a realty broker whose firm they had employed in the past and in whom they placed a great deal of confidence. They had been advised that there were soil problems in the area.
An initial investigation of the house for the purpose of examining the floor plan and design led to a second inspection for the purpose of examining the quality of the construction. At this time the plaintiffs saw the readily noticeable and in some instances rather substantial cracks in the interior walls of the house. During the second inspection of the house the plaintiffs asked of the defendants the cause of the cracking and were told that an engineer had examined the premises and had informed the defendants that the cracks were the result of settling of a new house. The defendants told the plaintiffs of the corrective measures taken as a result of the engineer's recommendation and further told them that there were minor soil conditions which required keeping water away from the foundation. The name of the engineer was given to the plaintiffs and they were offered his telephone number in the event they wished to contact the engineer.
The matter of cracking was not again discussed with the defendants, but the plaintiffs did discuss the problem with their agent, Moore, in whom they had confidence and who they believed would not let them buy a house in an area where there were bad soil conditions. Moore told them that he would make no recommendation about the soil condition but that he had sold a home adjacent to and next door to this property that had not been troubled by the soil conditions. After offers and counteroffers had been submitted, plaintiffs, in June of 1958, finally purchased the house.
New cracks began to appear in the house in the fall of 1958, and in early 1959, the cracking having become quite severe, a construction company was employed by the plaintiffs to investigate the situation. Thereafter further investigations were made by other specialists and it was determined that the cracking was due to a high moisture content soil condition and could be remedied only at large expense. Plaintiffs thereupon brought this action against defendants for damages or for rescission, electing at the time of trial to proceed upon rescission...
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Rocky Mountain Exploration, Inc. v. Davis Graham & Stubbs LLP
...both "question[s] of fact to be determined by the trier of fact upon the circumstances of each individual case." Bassford v. Cook, 152 Colo. 136, 380 P.2d 907, 910 (1963) ; Zimmerman v. Dan Kamphausen Co., 971 P.2d 236, 240 (Colo. App. 1998) ; see also Nelson v. Elway, 908 P.2d 102, 123 (Co......
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Kaufman v. Guest Capital, L.L.C.
...(investor's failure to investigate contradicting statements in PPM constituted recklessness and barred 10b-5 claim); Bassford v. Cook, 152 Colo. 136, 380 P.2d 907, 910 (upholding trial court's judgment for sellers where buyers had opportunity to consult engineer regarding soil problems in h......
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M.D.C./Wood, Inc. v. Mortimer
...a right to rely on the misrepresentation is a question of fact and is binding on appeal if supported by the evidence. Bassford v. Cook, 152 Colo. 136, 380 P.2d 907 (1963); see also Lempert v. Singer, 766 F.Supp. 1356, 1366 (D.V.I.1991) (holding a contract is voidable if the plaintiff is jus......
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Horne v. Timbanard
...as a necessary element in an action to rescind. There is, however, reputable authority taking a contrary view. Bassford v. Cook, 152 Colo. 136, 380 P.2d 907, 910 (1963).4 Rule 49(g), R.Civ.P., reads in part:'* * * the court may submit to the jury written questions susceptible of categorical......