Foster v. O'Farrell, 10606.

• Decision Date: 07 April 1924
• Docket Number: 10606.
• Parties: FOSTER v. O'FARRELL et al.
• Court: Colorado Supreme Court

225 P. 217

75 Colo. 170

FOSTER v. O'FARRELL et al.

No. 10606.

Supreme Court of Colorado

April 7, 1924

Department 1.

Error to District Court, Weld County; Neil F. Graham, Judge.

Action by J. Newton Foster against Ollie G. O'Farrell and another. Judgment for defendants, and plaintiff brings error.

Reversed and remanded.

Joseph C. Ewing and Worth Allen, both of Greeley, for plaintiff in error.

ALLEN, J.

This is an action for damages for deceit. There was a verdict and judgment for defendants. The plaintiff brings the cause here for review.

The complaint alleges, in substance, that in November, 1917, the defendant Seelinger, for the purpose of inducing plaintiff to make a loan to one O'Farrell, falsely represented to plaintiff that O'Farrell was a very wealthy man. There are other allegations wherein Seelinger and O'Farrell are charged with having entered into a conspiracy to defraud plaintiff.

The court instructed the jury that unless it found that the defendants O'Farrell and Seelinger were in a combination and acting with a unity of action for the purpose of defrauding plaintiff, the defendant Seelinger would not be liable. The giving of this instruction is assigned as error.

Although a conspiracy to defraud is alleged, it was not necessary to prove it. Conspiracy is not a part of the cause of action for deceit. 27 C.J. 43, and cases cited. The charge of conspiracy, if unsupported by the evidence, can be considered as surplusage. 12 C.J. 584. It was error to give the instruction.

Another instruction complained of is one to the effect that plaintiff cannot recover unless the acts and representations of defendant 'were of a nature calculated to deceive and impose on a person who, as a loaner of money, has exercised ordinary prudence in relying on them.' This instruction is incorrect, and constitutes prejudicial error in view of the fact that the complaint alleges, and there is evidence to support the allegation, that the plaintiff is very ignorant about business matters and matters in general, and is unable to read or write more than his own name, of which the defendant Seelinger was well informed. 27 C.J. 81; Miller v. People, 22 Colo. 530, 45 P. 408; Sellar v. Clelland, 2 Colo. 532.

The judgment is reversed, and the cause remanded for new trial.

TELLER, C.J., and BURKE, J., concur.