Elgin Jewelry Co. v. Wilson

• Decision Date: 03 February 1908
• Parties: ELGIN JEWELRY CO. v. WILSON.
• Court: Colorado Supreme Court

93 P. 1107

42 Colo. 270

ELGIN JEWELRY CO. v. WILSON.

Supreme Court of Colorado

February 3, 1908

Appeal from District Court, Fremont County; M. S. Bailey, Judge.

Action by the Elgin Jewelry Company, a copartnership, against Mrs H. Wilson. From a judgment for defendant, plaintiff appeals. Affirmed.

A. L. Jeffrey, for appellant.

Joseph H. Maupin, for appellee.

BAILEY J.

The complaint in this action alleges that appellee is indebted to appellant in the sum of $110 upon a written contract for the purchase of goods. After denying the allegations of the complaint, the defendant alleged that she agreed with the agent of plaintiff to purchase goods amounting to $11, but that the agent, then and there intending and contriving to cheat and defraud defendant, falsely represented to her that it was necessary that she sign a printed order for the goods and that he showed her an order for the goods, amounting to $11, and requested her to sign it, but that he fraudulently and without her knowledge obtained her signature to another order for goods aggregating $110 representing to her, and she believing, that it was the $11 order; that when the goods arrived and she opened the package she discovered that, instead of containing the goods which she had agreed to purchase, it contained other articles whereupon she returned the goods to the Elgin Jewelry Company, plaintiff; and that said company since that time has been and still is in possession thereof. To this answer plaintiff filed two demurrers--the first to that part of the defense alleging the fraud, because the facts therein alleged constituted no defense to the action, and because it was ambiguous, unintelligible, and uncertain; the second to that part of the answer alleging the discovery of the fraud and the return of the goods, and that they were still in the possession of the company, for the reason that that portion of the defense was ambiguous, unintelligible, and uncertain, because it failed to show how it was a defense to the complaint. These demurrers were overruled by the court, and its action is assigned as error.

It will be borne in mind that these demurrers were not separate grounds of demurrer to the same defense, but were separate demurrers to different paragraphs of the same defense. This may not be done. The demurrer must go to the entire defense and not to any segregated portion. The plaintiff may not pick out a sentence or a single allegation of an answer and demur to it because it is insufficient to constitute a defense, or because it is ambiguous or uncertain; but the answer must be taken as an entirety. This question was before this court in Herfort v. Cramer, 7 Colo. 483, 4 P. 896, and it was there said: 'We observe, in the first place, that, whatever defects may exist in the portion of the answer under consideration, the demurrer in still more defective. The attempt thus made to separate the averments descriptive of the fraud practiced upon the defendant into two distinct offenses seems to be wholly without pretext. This portion of the answer does not purport to state two grounds of defense, but the single ground that the defendant was induced to enter into the contract of purchase through fraud, and...