Benson v. Bottger, 18494

• Decision Date: 15 August 1960
• Docket Number: No. 18494,18494
• Parties: W. Clayton BENSON and Henry L. Benson, Plaintiffs in Error, v. Martin D. BOTTGER and Vina M. Bottger, Defendants in Error.
• Court: Colorado Supreme Court

Page 601

354 P.2d 601

143 Colo. 579

W. Clayton BENSON and Henry L. Benson, Plaintiffs in Error, v. Martin D. BOTTGER and Vina M. Bottger, Defendants in Error.

No. 18494.

Supreme Court of Colorado, In Department.

Aug. 15, 1960.

Marjorie Worland Epping, Denver, for plaintiffs in error.

Tullis, Trott & Johnson, Colorado Springs, for defendants in error.

KNAUSS, Justice.

We will refer to plaintiffs in error as the Bensons and defendants in error as the Bottgers, and to Ann E. Gehrlein and George S. Gehrlein as the Gehrleins. The latter were not parties to the present action, but were parties in a suit in Larimer County, Colorado, as will hereinafter more fully appear.

The evidence discloses that in September, 1953 the Bottgers began negotiations with the Gehrleins for a trade and exchange of Larimer County properties owned by the Bottgers for property at Deckers, Colorado upon which the Gehrleins held the leasehold interest and owned the improvements thereon; that during these negotiations the Bottgers were advised by the Gehrleins that the Snow Water Springs Resort Lodge was under lease to the Bensons at an annual rental of $3,000 and that said lease was for a five-year term beginning April 1, 1953; that on October 29, 1953 a trade and exchange agreement was executed by the Bottgers and the Gehrleins under the terms of which Bottgers exchanged the Larimer County property for the lease and property of the Gehrleins at Deckers, then under sublease to the Bensons; that the trade and exchange agreement between the Bottgers and the Gehrleins was consummated on December 1, 1953 at which time the Gehrleins assigned to the Bottgers all of their right, title and interest as Lessors under the aforesaid business lease with the Bensons. At the time of closing a business lease agreement, purporting to be the lease executed on April 1, 1953 between the Gehrleins and the Bensons and calling for an annual rental of $3,000 was displayed to the Bottgers, and a copy thereof delivered to them.

The evidence discloses that following the closing of the Bottger-Gehrlein transaction, a few minor difficulties arose which caused the Bottgers to feel they had not been treated fairly by the Gehrleins; that during the same period of time the Bottgers were on friendly terms with the lessees in possession, Bensons; that a short time prior to April 1, 1954 Vina M. Bottger during a conversation with W. Clayton Benson, mentioned that the next annual rental payment of $3,000 would soon be due on the Snow Water Springs Resort Lodge; that Benson responded that his lease did not state he owed any more money and that he had recorded his lease in Castle Rock because he felt some trouble might come up; that the lease with the Gehrleins had been recorded and could be inspected at Castle Rock and that it provided for a total rental of $3,000 for the entire five-year term of the lease.

Immediately following the aforesaid conversation between Vina M. Bottger and W. Clayton Benson, the Bottgers examined the records at Castle Rock, Colorado and found the lease recorded there provided for a total rental of $3,000 for the entire five-year term. The Bottgers felt that a recorded document was 'official' and that it had 'to be right'. Immediately thereafter the Bottgers went to Fort Collins, Colorado, contacted an attorney and placed the matter in his hands; that soon thereafter an action was filed in the district court in the County of Larimer by the Bottgers as Plaintiffs, against Ann E. Gehrlein and George S. Gehrlein, as Defendants, being Civil Action 11544.

The complaint in said Larimer County action alleged the negotiation, execution and consummation of the trade and exchange agreement between the Bottgers and the Gehrleins, stated that the property of the Gehrleins had been materially misrepresented to the Bottgers in that the lease of April 1, 1953 had been represented as providing for an annual rental of $3,000, when in truth and in fact said property was leased for a five-year term at a total rental of $3,000, or sum of $600 per year. The complaint alleged other misrepresentations on the part of the Gehrleins and prayed that the Bottgers be restored to their former position by rescission of the trade and exchange agreement, and that the conveyance of the Larimer County property to the Gehrleins be cancelled and held for naught.

After first filing an answer in the Larimer County action, which apparently did not become a part of the record in this case, the Gehrleins sought and obtained permission of the Court to file a Third Party Complaint against the Bensons. The Third Party Complaint against the Bensons recited the substance of the rescission Complaint filed by the Bottgers and in turn alleged that the genuine lease executed on April 1, 1953 provided for an annual rental of $3,000 payable on the 1st day of April of each year and that such lease had been emasculated by the Bensons by the deletion of the provision for $3,000 annual payment is advance. The Third Party Complaint further alleged that the Bensons and each of them were guilty of fraud and wilful deceit by reason of which the Gehrleins had been damaged. The Gehrleins as Third Party Plaintiffs prayed the Court for judgment cancelling and annulling the pretended fraudulent lease, for a judgment requiring the Bensons to pay the sum of $3,000 into the Registry of the Court to be paid to the lawful holders of the genuine lease and for judgment for individual damages to themselves in the amount of $5,000. The Bensons moved to dismiss the Third Party Complaint filed by the Gehrleins.

While the pleadings were in the above state and without a trial on the merits, the Larimer County action was dismissed on February 23, 1955 with prejudice; that the relief sought by the Third Party Plaintiffs, the Gehrleins, against Bensons was not granted. At the time of dismissal of the action both...