Cole v. Smith

• Decision Date: 16 October 1899
• Citation: 58 P. 1086,26 Colo. 506
• Parties: COLE v. SMITH et al.
• Court: Colorado Supreme Court

58 P. 1086

26 Colo. 506

COLE v. SMITH et al.

Supreme Court of Colorado

October 16, 1899

Error to district court, Arapahoe county.

Action by Charles M. Smith and another against Mary B. Cole executrix of the will of Lyman H. Cole, deceased. There was a judgment for plaintiffs, and defendant brings error. Reversed.

This is an action for deceit, based upon false representations made by the original defendant, Lyman H. Colo, concerning the number of cattle owned by him, which he exchanged with the plaintiffs for real estate. The complaint alleges that the plaintiffs, as parties of the second part, entered into a written contract with the defendant, as party of the first part, by the terms of which the latter agreed to deliver to the former, at a certain place, 20 head of saddle horses and all of the defendant's range cattle ranging in Montrose Gunnison, Delta, and other counties in the state of Colorado west of the Continental Divide. Only such portions of the contract, omitting mere formal language, as are material on this review, are here reproduced: 'During the spring round-up the first party is to gather, and on or before the close thereof count out and deliver to the said second party one thousand head. * * * If the first party shall fail to count out and deliver the entire one thousand head, as provided for, he shall forfeit a part of the property received or to be received by him in payment for said cattle as hereinafter mentioned [the property, town lots in Denver is here described], a deed for which shall be left in escrow, subject to delivery for the purpose of carrying out this agreement; and, if the party of the first part shall not count out and deliver as many as eight hundred of the aforesaid thousand head, he shall forfeit the property known as the 'Diamond Joe Ranch,' consisting of 320 acres, a deed for which to Charles M. Smith and Henry C. Donnell is also placed in escrow, to be delivered to the second party in case of such failure. It being understood and agreed that no personal liability shall attach to the first party for any damage resulting, or which may be claimed to result, from a failure to count out and deliver the whole number of cattle, but the forfeiture or forfeitures aforesaid, as the case may be, shall cover and be in full of all such damages.' Then follow a clause describing the real estate which was the consideration for the cattle given by the parties of the second part and certain other provisions, not here material; and then it proceeds: 'The deeds to be placed in escrow, * * * with such indorsements as shall provide for the delivery of the same to the said second party herein in case of default as herein provided for;' and, if there is no default, then certain other provisions are made with reference to the various deeds and papers. The complaint avers that the inducements which led the plaintiffs to make this agreement were representations by the defendant that he was the owner of, and would agree to deliver, not less than 1,000 head of a certain herd of cattle ranging west of the Continental Divide, and in exchange therefor would accept the real property described in the agreement to be conveyed by the plaintiffs; that, if he failed to count out and deliver 1,000 head of said cattle, he would forfeit and retransfer a portion of the real estate which he was to receive in exchange; and, if he failed to deliver 800 head, he would forfeit and transfer the Diamond Joe ranch, already owned by him. It is further averred that, 'as an inducement to the consideration of the Diamond Joe ranch as compensation for the failure to deliver the full eight hundred head,' the defendant represented that the ranch was fully worth the sum of $5,000, and was very valuable, and that he had been offered $3,000 in cash therefor, and had refused the same, because the real value of the property was more; that the location of the cattle and the ranch is a great distance from Denver, where these representations were made. And the plaintiffs further say that they did not know the true condition, size, and character of the herd, the number of cattle therein, nor the situation, value, and condition of the Diamond Joe ranch, but were obliged to rely solely and entirely upon the truth of the representations made concerning them by the defendant, and were induced to make, and did make, the exchange of property mentioned in the agreement, solely because they believed and relied upon the truth of the defendant's representations; that the real estate by them transferred was worth $20,000. Apt averments are made that defendant falsely and knowingly made these representations for the purpose of deceiving and injuring the plaintiffs. It is also averred that the defendant was able to count out and deliver to the plaintiffs only 250 head of cattle, and that he has not recompensed plaintiffs for his failure to deliver the entire number, and has not kept his agreement to transfer the real estate to plaintiffs as provided in the so-called 'forfeiture clauses'; that the Diamond Joe ranch is valueless, and that it is untrue that defendant was offered in good faith $3,000 therefor; and he knew, when plaintiffs accepted the ranch as a forfeiture for a failure on his part to keep his agreement, that plaintiffs relied solely upon the truth of the representations he made to them concerning it, and he knew, when he made them, that they were false. The answer admits the making of the agreement, but denies the allegations of wrongdoing charged against the defendant. It admits that not more than 250 head of cattle were delivered by him, and alleges that upon his failure to deliver at least 800 he notified the plaintiffs that the deeds which had been duly executed, as provided in the contract, and left in escrow, conveying the premises which were to be forfeited in case of the default in question, were ready to be and would be delivered to them whenever they called for them; and the defendant, in his answer, again offered the deeds to the plaintiffs as full satisfaction, under the terms of the agreement, for the alleged damages sustained by them by reason of their not receiving the full number of cattle specified. A second and affirmative defense was also interposed, but it is not important. Plaintiffs filed a replication, which is referred to in the opinion. Trial was to a jury, which returned a verdict in favor of the plaintiffs for about $11,000, of which the court required plaintiffs to remit a portion, so as to leave the sum of $6,374, and then rendered judgment in favor of the plaintiffs for the latter amount, to be paid in due course of administration, the defendant having died pending the action. From this judgment the defendant, in her capacity as executrix, comes here on error.

Benedict & Phelps, for plaintiff in error.

CAMPBELL, C.J. (after stating the facts).

The fact that defendants in error have not appeared and filed a brief has imposed upon us an extra burden in making a more diligent examination of the record than otherwise would have been required. The result of that examination, and a reading of the authorities, satisfy us that the judgment should be reversed. It has been a matter of no little difficulty to select the grounds upon which to base our decision. We are constrained to say that some errors (not referred to in the opinion) were committed by the trial court, which, of themselves, would require us to send the cause back for a new trial; but we shall not discuss them, for the view that we take of the case upon the whole record is that the plaintiffs are not entitled to any relief. It is doubtful if the complaint itself states a cause of action, and it is a serious question whether the replication does not depart from the cause of action defectively stated in the initial pleading. It would unduly prolong the opinion separately to discuss the various legal propositions involved in the controversy, and, in view of this, and the additional fact just alluded to, that the plaintiffs have failed on the merits, we shall dispose of the case as though all of the allegations of the replication were in the complaint, and show from the pleadings and evidence that the cause should be dismissed. When the plaintiffs discovered that they were defrauded, at least two remedies were open to them: First, to rescind the contract; second, to...