Gibraltar Colo. Life Co. v. Brink

Decision Date22 January 1945
Docket Number15139.
Citation157 P.2d 134,113 Colo. 304
PartiesGIBRALTAR COLORADO LIFE CO. v. BRINK.
CourtColorado Supreme Court

Rehearing Denied March 26, 1945.

In Department.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Action by Andrew Brink against Gibraltar Colorado Life Company for damages for fraud and deceit in sale of stock and bonds and violation of contracts. Judgment for plaintiff, and defendant brings error.

Reversed.

R. Hickman Walker, of Denver, for plaintiff in error.

A. X Erickson and Don B. Oliver, both of Denver, for defendant in error.

BURKE Justice.

These parties are hereinafter referred to as the company and Brink respectively.

Brink brought this action against the company for damages for fraud and deceit in the sale to him of stocks and bonds and violation of contracts, demanding a total of $46,900. On verdicts in his favor totaling a little over $11,000 he had judgment. To review that judgment the company prosecutes this writ, specifying forty-five alleged errors which counsel argue under eight headings. Of these we limit our attention to one which appears so indisputable as to require reversal. There is no reason to believe that any others which may be well taken will again arise.

Originally the complaint herein contained five causes of action. The third and fifth were dismissed by Brink with the approval of the company. They require no further notice.

The first cause of action is for damages for fraud in the sale by the company to Brink of five so-called endowment bonds.

The second cause of action is for damages for fraud in the sale by the company to Brink of two shares of its capital stock.

The fourth cause of action is for damages for the company's failure to keep its contract in re five 'ten year endowment contracts without insurance benefits' wherein the company agreed to pay the holder, ten years after date (February 15, 1927) $1000 on each, and which contracts Brink had purchased from one Juhl, to all of whose rights he had succeeded.

At the close of all the testimony Brink moved to amend each of said causes of action 'to conform to the evidence' by alleging recision and offer to return to the company whatever he had received. This motion was granted over the company's objection. Thus an action affirming alleged fraudulent contracts and demanding damages therefor was, at the close of the trial, converted by amendment in to an action for recision for fraud and damages for the resulting injury. No proposition of law is better settled in Colorado than that a plaintiff may not thus play...

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5 cases
  • Trimble v. City and County of Denver
    • United States
    • Colorado Supreme Court
    • March 11, 1985
    ...constituted fraud, partial rescission of the agreement is not a proper remedy for that misconduct. See Gibraltar Colorado Life Co. v. Brink, 113 Colo. 304, 157 P.2d 134 (1945). One seeking to remedy fraudulent inducement of a contract must elect either to rescind the entire contract to rest......
  • Roper v. Spring Lake Development Co., 88CA1169
    • United States
    • Colorado Court of Appeals
    • February 15, 1990
    ...Here, since a timely demand for rescission did not occur, the proper election of remedies was not made. Gibraltar Colorado Life Co. v. Brink, 113 Colo. 304, 157 P.2d 134 (1945). Furthermore, since the timely election between contract damages and rescission is incumbent upon the parties, in ......
  • Torbert v. People
    • United States
    • Colorado Supreme Court
    • February 13, 1945
    ...156 P.2d 128 113 Colo. 294 TORBERT v. PEOPLE. No. 15379.Supreme Court of ColoradoFebruary 13, ... end of that period, then there should be no life left in ... that. I have not done that in this case because I was not ... ...
  • Wark v. Bopp, 15944.
    • United States
    • Colorado Supreme Court
    • November 1, 1948
    ...199 P.2d 892 119 Colo. 12 WARK v. BOPP. No. 15944.Supreme Court of Colorado, in ... 114, 6 P.2d ... 912; Gibralter Colorado Life Co. v. Brink, 113 Colo ... 304, 157 P.2d 134. He elected rescission, ... ...
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