Cahill v. Readon
| Decision Date | 03 December 1928 |
| Docket Number | 11978. |
| Parties | CAHILL v. READON. |
| Court | Colorado Supreme Court |
Rehearing Denied Jan. 7, 1929.
Department 2.
Error to District Court, City and County of Denver; Charles C Sackmann, Judge.
Action by Iona M. Cahill against Iola M. Readon. Judgment for defendant, and plaintiff brings error.
Reversed and remanded with directions.
Rinn & Connell, of Boulder, and Con K. O'Byrne of Denver, for plaintiff in error.
E. H. Whitney, of Denver, for defendant in error.
Mrs Cahill brought action against Mrs. Readon to cancel an exchange of real estate because of fraud. She was defeated on trial to the court, and brings error. The judgment must be reversed.
The court made a general finding for defendant, and there is some evidence to support it, but, notwithstanding this, the plaintiff in error claims, and we think rightly, that the evidence for the plaintiff is convincing beyond a reasonable doubt that she was fraudulently overreached. Whittemore v. Wilkins, 77 Colo. 533, 238 P. 69.
The essential facts as shown by the evidence are as follows: Plaintiff Cahill, a widow with two children, was owner of a house in Denver which cost her about $7,500, and afforded her a home with about $90 per month additional. Mrs. Readon had recently acquired a building in Lusk, Wyoming, built for a store with rooms over it at a cost of about $13,000. It had been used for a hotel, and had yielded a large rent. The lower part had been used for printing a newspaper. These properties were exchanged February 21, 1925. May 26, 1926, this suit was begun.
Plaintiff claims that the Lusk property was worthless, that she was induced to exchange by representations that the market value of that property was $12,000, that it could readily be rented for $100 per month, that there were persons ready to rent it at that rate who were awaiting Mrs. Readon's decision, viz., one Johnson and one Mrs. Thompson, and another not named, but that defendant would not accept them, because she wished to keep the building empty while she held it for sale. Mrs. Readon's agent, a Denver real estate broker named Kane, was a former friend of plaintiff, and was told by plaintiff that she depended on the income of her property for a living and could take nothing but income-paying property, and told her that he or defendant had offers of $100 per month for the Lusk property, as above stated. There is much more evidence of representations, some perhaps actionable and some not, but there can be no doubt whatever that all were made to Mrs. Cahill to lead her to believe that she was buying a valuable property, on the income of which she could partly support herself, and that she did so believe; neither is there any doubt that she relied on these statements, and was induced thereby to make the exchange.
The statement that persons were awaiting Mrs. Readon's decision to rent was actionable if false, being a statement of an existing fact for the purpose of persuading plaintiff to believe that she would be sure of an income. 'The gist of a fraudulent misrepresentation is the producing of a false impression upon the mind of the other party, * * * the means of accomplishing it are immaterial.' Hankins v. Farmers' & Merchants' Bank, 42 Okl. 330, 141 P. 272. So of the statement that the property would readily rent for a certain monthly rent. A representation of value, if made for the purpose of having it accepted as a fact, is to be treated as a representation of a fact, Lewis v. Winslow, 77 Colo. 95, 98, 234 P. 1070, and we see no difference in principle between a representation of sale value and rental value, and the statements of rental value were made to be and were accepted as fact and acted upon. See, also, Groves v. Chase, 60 Colo. 155, 151 P. 913; Jasper v. Bicknell, 62 Colo. 318, 162 P. 144; Whittemore v. Wilkins, supra. There is some dispute as to whether Kane or defendant made these statements or some of them, but it is immaterial. Mrs. Readon is responsible for her agent's statements.
Under the evidence, the representations as to market value may possibly be said to have been statements of mere opinion, and so not actionable though false, but the representations as to rental value, and that there were persons awaiting opportunity to rent, were definite and positive, not mere opinions. They were made to assure plaintiff that the income on which she depended for a livelihood was certain, and were accompanied by the statement of Kane that he could and would surely rent the building for her.
There is strong evidence that the property was literally worthless, but there is some evidence that it had sale value; there is, however, no evidence worthy of consideration that it had any rental value; there is much evidence, including evidence of plaintiff's own witnesses, that it had at the time of the exchange and has no rental value whatever, and this is incontrovertibly proved by the undisputed fact that Kane and agents at Lusk tried for more than a year to rent it, but were unable to do so at any price. This is enough to show that the persons ready to rent were fictitious, but there is more: Mrs. Thompson, one of them, called by plaintiff, testified that she was the last tenant of the place, and paid $50 per month in winter and $35 in summer, that she left in August, 1924, because she could not make the rent, that Mrs. Readon asked her to take it again at the nominal rate of $100 per month and to give her a check for $100, offering to give back $50 thereof, and said she had 'got stung' and wanted to get rid of the property, but that Mrs. Thompson refused to do this. True, Mrs. Readon denies this, but it conforms to her conduct which her denial does not. Mrs. Thompson is a disinterested witness, and none other of the prospective tenants was called, nor was their absence explained. The conclusive proof of the essential falsity of the representations, however, is the indisputable evidence that the property is unrentable at any price. Who, unless deceived, seeking to buy income-bearing property, would buy property with no income at all? The thing is preposterous. This is not a case of overstatement of value or rental value, but of statements which were designed to make and did make plaintiff buy a gold brick. It is like the sale of a dead horse.
The defendant stated to plaintiff that there had...
To continue reading
Request your trial
-
American Guar. Co. v. Sunset Realty & Planting Co.
... ... Cal.App. 664, 267 P. 578; Roloff v. Hundeby, 105 Cal.App ... 645, 288 P. 702; Russell v. Roscoe, 106 Cal.App. 293, 289 P ... 185; Cahill v. Readon, ... [23 So.2d 450] ... 85 Colo. 9, 273 P. 653; Commercial Sav. Bank of Carroll, ... Iowa, v. Kietges, 206 Iowa 90, 219 N.W. 44; ... ...
-
Champlin Oil & Refining Co. v. Chastain
...ed.). Though a statement may be literally true, it is actionable if made to create an impression substantially false. Cahill v. Readon, 85 Colo. 9, 273 P. 653 (1929). These principles are significant when the one who seeks relief through equity is the one who has made a misleading correctiv......
-
Martinez v. Affordable Housing Network
...agreement, the defrauded party must have the ability to return anything it had received pursuant to that agreement. Cahill v. Readon, 85 Colo. 9, 15, 273 P. 653, 656 (1928) ("It is claimed that there was no sufficient tender of rescission, but in Colorado the general tender of equity in the......
-
Tucker v. Beazley.
...v. Harfred Realty Corporation et al., 287 N.Y. 290, 39 N.E.2d 243; Everett v. Gilliland, 47 N.M. 269, 141 P.2d 326; Cahill v. Readon, 85 Colo. 9, 273 P. 653; Sullivan v. Helbing, 66 Cal.App. 478, 226 P. 803; Dennis v. Thomson, 240 Ky. 727, 43 S.W.2d 18. 4Security Investment v. Garrett, 3 Ap......