Clark v. Giacomini

• Court: Colorado Supreme Court
• Writing for the Court: [85 Colo. 532] MOORE, J.
• Citation: Clark v. Giacomini, 85 Colo. 530, 277 P. 306 (Colo. 1929)
• Decision Date: 29 April 1929
• Docket Number: 12100.
• Parties: CLARK v. GIACOMINI.

277 P. 306

85 Colo. 530

CLARK v. GIACOMINI.

No. 12100.

Supreme Court of Colorado

April 29, 1929

Department 2.

Error to District Court, Logan County; H. E. Munson, Judge.

Action by Thomas R. Giacomini against Charles H. Clark. Judgment for plaintiff, and defendant brings error.

Judgment modified, and, as modified, affirmed.

Danforth & Kavanagh, of Denver, for plaintiff in error.

Webster West & Drath, of Denver, and Lawrence Giacomini, of Sterling for defendant in error.

MOORE, J.

Parties are referred to as in the lower court. Plaintiff had a verdict and judgment for $3,120 upon a complaint charging false representations in the sale of stock. Upon a finding in the verdict that, in committing the tort complained of, the defendant was guilty of fraud and willful deceit, the court ordered the defendant incarcerated for a period of four months or until the amount of the judgment was paid. Defendant now seeks a reversal of this judgment. His assignment of errors contains 26 specifications of which the following merit consideration: (1) Rulings on certain evidence; (2) instructions; (3) interest.

Prefacing the consideration of these facts, a brief summary of the history and character of this case should be given. In a former trial hereof, Giacomini had a verdict and judgment against Clark which was reversed by this court and a new trial granted. Clark v. Giacomini, 78 Colo. 551, 243 P. 620.

We there held that the complaint stated a cause of action, but that the representation therein contained 'of authority to agree to payment of the notes out of dividends, however was not a ground of action,' and that the special verdict of the jury, finding 'that in committing the tort complained of, the defendant was guilty of fraud and willful deceit, consisting of a willful disregard of the rights of the plaintiff,' was defective. The sole fraudulent representations relied upon for a recovery upon the retrial were that the defendant knowingly, willfully, and falsely represented to the plaintiff that one J. P. Dillon had subscribed for and purchased $20,000 worth of stock of the Industrial Sugar Company, and that Dominic Scalva had purchased $5,000 worth of said stock; that the plaintiff believing the representations so made to be true, not knowing of their falsity, and relying thereon, he purchased the stock in question; and that said representations were false in fact.

1. Defendant's sole defense was that the two representations hereinabove referred to were not made. In addition to his denial he testified, over plaintiff's objections, that he had been instructed by an officer of the sugar company not to tell any one how much stock Dillon had bought; that this instruction had been given after Dillon had stated to the defendant, 'I don't care to have the people in the territory know my business. I never let them know my business, anybody, what I buy or what I don't buy.' Defendant further testified that he stated to said officer of the sugar company, "Well,' I says, 'many are asking me how much he has got,' and he says, 'You are not to tell that and be sure you don't do it.' I am sure that I did not do it.' This testimony was given by the defendant, evidently for the express purpose of bolstering up his denial that he had stated to Giacomini that Dillon had bought $20,000 worth of stock, thereby giving the jury cause to believe that, because he had never told any one how much stock Dillon had bought, he had not made such a representation to the plaintiff. Upon cross-examination, the defendant was interrogated as to whether he had not told one Scalva that Dillon had bought $20,000 worth of stock which he denied. Upon rebuttal Scalva testified that the defendant had told him that Dillon had purchased $20,000 worth of stock. Defendant contends that the admission of this testimony was error because wholly immaterial and collateral to the issues.

The defendant, in an effort to prove his denial, having given immaterial testimony that he had been instructed to tell and had told no one how much stock Dillon had purchased, is not now in a position to object to testimony rebutting the same. Snapp v. Manning, 77 Colo. 268, 236 P. 131; Scott S. & T. Co. v. Roberts, 42 Colo. 280, 93 P. 1123; Grimes v. Hill, 15 Colo. 359, 25 P. 698.

2. Seven instructions were tendered by the defendant and refused by the court.

No. 1 instructs the jury to return a verdict for the defendant. It was not error to refuse this instruction, because the record discloses evidence from which the jury could properly find for the plaintiff.

Instruction No. 2 was a brief recital of the issues. Instruction No. 1 given by the court, having fully explained the issues, it was not error to refuse this instruction.

Instruction No. 3 was apparently withdrawn.

Instruction No. 4 provided that, if the jury finds the evidence to be equally balanced, their verdict should be for the defendant. Instruction No. 2 given by the court provided that the plaintiff must establish his case by a fair preponderance of the evidence. Having given this instruction, it was not error to refuse the one requested.

Instruction No. 5 provided, in substance, that fraud must be clearly proven, and that it is never proven by conjecture or inference. Considering all of the instructions given by the court, it cannot be said that the failure to give instruction No. 5 was substantial, prejudicial error upon which a reversal of the case should be had.

Instruction No. 6 provided: 'That it is an essential element in a case of this nature, and it is necessary for the plaintiff to prove, that he not only relied upon the statements made to him by the defendant, if you find that such statements were made, as alleged in the plaintiff's complaint, but also that in so relying he was using reasonable diligence under all the circumstances surrounding the transaction as shown by the evidence in this case; and if you do not find that he used such diligence, your verdict must be for the defendant.' This does not state the law, and it was properly refused. One who has intentionally perpetrated a fraud should not be heard to say that greater vigilance upon the part of the one defrauded would have avoided it. Zang v. Adams, 23 Colo. 411, 48 P. 509, 58 Am.St.Rep. 249; Hanson v. Chamberlin, 76 Colo. 562, 233 P. 833; Carlson v. Akeyson, 65 Colo. 35, 172 P. 1058.

The instructions given by the court sufficiently cover the points...