Deweese v. Brown

• Decision Date: 06 October 1913
• Citation: 55 Colo. 430,135 P. 800
• Parties: DEWEESE v. BROWN.
• Court: Colorado Supreme Court

135 P. 800

55 Colo. 430

DEWEESE v. BROWN.

Supreme Court of Colorado

Oct 6, 1913

Error to Prowers County Court; W. E. Fee, Judge.

Action by Howard Brown against J. M. Deweese. Judgment for plaintiff. Defendant brings error. Affirmed.

Granby Hillyer, of Lamar, for plaintiff in error.

Merrill & M'Carty, of Lamar, for defendant in error.

GARRIGUES J.

1. Defendant below, J. M. Deweese, plaintiff in error, listed certain real estate in Prowers county, Colo., for exchange with plaintiff below, Brown, defendant in error. If a trade was effected through Brown's efforts, he was to receive a commission on the exchange valuation of Deweese's land. Brown introduced to defendant one Ditmars, of Kansas, a prospective purchaser, who desired to exchange his land in that state for a part of defendant's land listed with Brown. Ditmars' land was on the Neosha river, and during the negotiations between the parties Deweese asked him whether his land was what was known as overflow land, and was informed that it was not. As a further precaution before entering into a written contract of exchange with Ditmars Deweese went to Kansas and made a personal inspection of the land, at the conclusion of which he and Ditmars came to an agreement for an exchange of properties which was reduced to writing, signed by the respective parties, and Deweese returned to Colorado. Thereafter some one informed him that the property for which he had traded was overflow land, and of little value because of the liability of the destruction of crops thereon by floods. Whereupon he made a second trip to Kansas for another inspection of the land, from which he became satisfied that it was subject to overflow, and that he had been defrauded in the trade. He notified Ditmars that he rescinded the contract, and would not carry out the agreement, for the reason that the character of the property had been misrepresented to him. On its face the written agreement was valid and binding upon both parties, although as between them it may have been voidable on account of the alleged misrepresentations. It is not claimed that Brown was guilty of bad faith or any neglect of duty, or that he made any false representations or possessed any knowledge of the character of the Kansas land, other than that known to his principal.

2. Under this state of facts, plaintiff in error contends that he had a right to rescind the contract, because he was induced to enter...