Colorado Springs Co. v. Wight

• Decision Date: 06 July 1908
• Citation: 44 Colo. 179,96 P. 820
• Parties: COLORADO SPRINGS CO. v. WIGHT.
• Court: Colorado Supreme Court

96 P. 820

44 Colo. 179

COLORADO SPRINGS CO. v. WIGHT.

Supreme Court of Colorado

July 6, 1908

Appeal from District Court, El Paso County.

Action by Carrie L. Wight against the Colorado Springs Company. From an order overruling a demurrer to the complaint, defendant appeals. Reversed and remanded.

Lunt Brooks & Willcox and M. B. Hurley, for appellant.

H McGarry, for appellee.

MAXWELL J.

This was an action at law to recover damages alleged to have been sustained by plaintiff by reason of misrepresentations made by defendant as to the width of a certain street which bounded on one side two city lots which defendant sold to plaintiff. The complaint alleged the corporate existence of defendant, its ownership of the lots, the purchase of the lots by plaintiff, through the Davie Realty Company, as defendant's agent, and then proceeded 'That The Davie Realty Company represented to the plaintiff that San Miguel street, bounding said property on the south side thereof, was 100 feet wide throughout its entire extent and where the same adjoins said property, as aforesaid. That such representation was specially authorized by the defendant, and was, in respect to the width of the street, believed and wholly relied upon by the plaintiff, who at the time did not know what the facts were in relation thereto, and the plaintiff was thereby influenced and induced to consummate the purchase of said property and to pay said sum of $2,750 therefor. That said representation is and was untrue, but plaintiff was not aware of the falsity thereof until a long time thereafter and until after she had taken possession of said property and had improved the same by the erection of two dwelling houses thereon of great value.' The complaint then alleged that San Miguel street, where it adjoins the lots, is only 50 feet wide, and that by reason thereof the lots were only worth $1,750, instead of $2,750, the price paid. A general demurrer was interposed to the complaint, which, having been overruled, defendant answered. A jury trial resulted in a verdict and judgment for plaintiff, to reverse which is this appeal.

The general demurrer attacked the complaint upon the ground that it did not allege that the representations made by defendant to plaintiff, upon which she relied and which induced plaintiff to make the purchase, were made by the defendant with knowledge of their falsity, and were made with the intention that they should be acted upon and for the purpose of inducing plaintiff to enter into the contract. The same proposition, in effect, was presented in instructions requested by defendant and refused. The rulings upon the demurrer and the refusal to instruct as requested are assigned as error. Sellar v. Clelland, 2 Colo. 532, was an action to recover damages sustained by plaintiffs, by reason of certain false representations made by defendants to plaintiffs as to the condition of a certain road or trail over which plaintiffs contracted with defendants to haul certain freight. It was there held (page 544): 'In regard to representations generally, I conceive it to be necessary for the party relying on the representations to show not only that they are false, but that the party making the same knew them to be false. But, when one has made a representation positively, or professing to speak as of his own knowledge on the subject, the intentional falsehood is disclosed, and the intention to deceive is also inferred, or, at all events, this is so when the matters falsely represented are speculiary within the knowledge of the party making them, and are not known to the party to whom they are made. In such a case the proof would seem to be complete when it was shown that the defendants made the representations; that they were made to induce plaintiffs to enter into the contract; that, relying upon the same, they did enter into the contract; that the representations were false; that the plaintiffs sustained damage; and that such damage was occasioned by reason of the falsity of such representations'--citing a large number of cases. In Wheeler v. Dunn, 13 Colo. 428, 436, 22 P. 827, 833, it was said: 'It is said in Bigelow on Frauds, 466, that a fraudulent misrepresentation is made up of five elements: (1) A false representation. (2) Knowledge by the person who made it of its falsity. (3) Ignorance of its falsity by the person to whom it was made. (4) The intention that it should be acted upon. (5) Acting upon it, with damage. An action at law for damages for deceit requires all these elements. In equity a case may be made without the second, and sometimes without the fifth. Very nearly the same enumeration of the...