Graham-Jones Motor Co. v. Nutter

• Decision Date: 02 March 1925
• Docket Number: 11033.
• Citation: 234 P. 1063,77 Colo. 74
• Parties: GRAHAM-JONES MOTOR CO. et al. v. NUTTER.
• Court: Colorado Supreme Court

234 P. 1063

77 Colo. 74

GRAHAM-JONES MOTOR CO. et al. v. NUTTER.

No. 11033.

Supreme Court of Colorado

March 2, 1925

Rehearing Denied April 6, 1925.

Department 3.

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

Action by E. R. Nutter against the Graham-Jones Motor Company and another. Judgment for plaintiff, and defendants bring error and apply for supersedeas.

Application for supersedeas denied, and judgment affirmed.

Ellis Robinson & Sarchet and James E. Garrigues, all of Denver, for plaintiffs in error.

John Horne Chiles and Jacob L. Sherman, both of Denver, for defendant in error.

ALLEN C.J.

This is an action to recover in damages for fraud alleged to have been practiced by defendants in inducing plaintiff to purchase an automobile. There was a verdict and judgment for plaintiff. The defendants who sued out this writ apply for a supersedeas.

The plaintiffs in error, defendants below, contend that the court should have directed a verdict for defendants upon the ground that plaintiff's evidence shows that she made the purchase in reliance only upon defendants' promise to give plaintiff another automobile in exchange for the one she purchased in case it is not satisfactory. This contention is made in reliance on the rule to the effect that a mere promise is not actionable. See Hart v. Zaitz, 72 Colo. 315 211 P. 391; Baker v. Allen, 68 Colo. 59, 189 P. 4. The record shows that plaintiff bases her action upon other representations. The complaint alleges, and she testified the defendants represented the automobile to be a new car and a 1921 model; whereas, it was a used machine and a 1920 model. It follows that the contention above mentioned is not well founded.

The principal contention of plaintiffs in error is that the court should have sustained their motion for a directed verdict because, as they claim, plaintiff's own evidence shows conclusively that she waived the fraud. With full knowledge of the fraud, she executed renewal notes. In many cases such a situation has resulted in a holding that fraud had been waived. 8 C.J. 444. In other cases the contrary result was reached. See Texas Harvester Co. v. Wilson-Whaley Co. (Tex.Civ.App.) 210 S.W. 574, 580. In First National Bank of Center v. Navins, 70 Colo. 491, 202 P. 702, we held there was an intention not to waive the fraud, or evidence of an intention not to waive it, where a party giving renewal notes did so because his health was not good and he could not go to court to defend an action on the original note. In 27 C.J. 22, it is said:

'It is * * * difficult and hazardous to formulate or to apply general rules as to what will constitute * * * a waiver, and each case in which the question arises must be considered and disposed of upon its own special facts, the underlying question being one of intent.'

Waiver is a matter of intention. Divine v. George, 72 Colo. 17, 209 P....