Herefort v. Cramer

• Decision Date: 01 October 1884
• Citation: 4 P. 896,7 Colo. 483
• Parties: HEREFORT v. CRAMER.
• Court: Colorado Supreme Court

4 P. 896

7 Colo. 483

HEREFORT v. CRAMER.

Supreme Court of Colorado

October 1, 1884

Error to county court of Lake county.

A S. Weston, for plaintiff in error.

BECK C.J.

This case is submitted ex parte by plaintiff in error upon a rather meager brief, considered the fact that the points raised involve important questions of practice. The first error assigned is that the court erred in issuing an attachment on an insufficient affidavit. The affidavit was made under the fourteenth subdivision of the attachment law (Civil Code, 1883 p. 30,) and merely states as ground for attachment that the demand is due on express contract 'for the direct payment of money, to-wit, upon three several promissory notes now overdue, amounting to the sum of seventeen hundred ninety-seven and 50-100 dollars, besides interest.' The quaere suggested is whether it is sufficient to authorize the issuing of a writ of attachment that the affidavit state merely the ground mentioned in this fourteenth subdivision of the act, or whether some other ground must not be stated. This question was passed upon by this court at the December term last, in the case of Simmons v. California Powder Co. 3 P. 420, wherein it was held that, notwithstanding the awkwardness of the phraseology, and the misplacing of said fourteenth subdivision in the attachment act, and the error in numbering, it was intended to define a separate and additional cause of attachment. The first error, therefore, is not well assigned. The second and third errors assigned are more serious. They question the rulings of the court below in sustaining the plaintiff's demurrer to portions of the defendant's answer.

A brief summary of the pleadings is necessary an understanding of the points involved. The plaintiff below, Joseph C. Cramer, sued the defendant, Lewis Herefort, upon three promissory notes: one for the sum of $1,000, payable to David Ringle, and signed by both defendant and plaintiff. The other two notes were for the sum of $500 each, were payable to the order of J. C. Cramer & Co., and were signed by the defendant only. The complaint alleges that the plaintiff signed the first note as security for the defendant, to enable the latter to borrow of the payee the sum of $1,000; that the defendant paid the accrued interest thereon, less the sum of $15, and no more; and that the plaintiff was compelled to pay the principal sum and balance of interest, and now holds the note, etc.; that the two $500 notes were transferred to him by the firm of J. C. Cramer & Co., and that plaintiff is the owner thereof.

The portion of the answer covered by the first and second grounds of demurrer alleges, in substance, that the obligations mentioned were executed by the defendant in consideration of an agreement entered into between him and the firm of J. C. Cramer & Co., whereby the said firm sold and transferred to the defendant their entire water-cart outfit, together with the good-will of the water-supplying business theretofore carried on by said J. C. Cramer & Co., in the city of Leadville. The property used in connection with the business consisted of seven water-carts, fourteen horses, and necessary equipments. By the terms of the agreement, the defendant became obligated to pay for said business and property the sum of $4,500. He alleges that he was induced to enter into this agreement by means of representations made to him by the plaintiff, J. C. Cramer, that the business was paying his firm $600 per month, clear of running expenses; that it would pay the defendant at the same rate, clear of running expenses; and that defendant could easily pay for the property out of the net proceeds of the business before the maturity of the notes for the purchase money. Defendant alleges that these representations were false and fraudulent, and were willfully made by the plaintiff for the purpose of defrauding and injuring him; that the property and business did not pay anything above running expenses, either to the firm of J. C. Cramer & Co. or to the defendant, and that it was incapable of being made to pay any more. He avers that the $1,000 note was executed for the purpose of obtaining a loan of the sum mentioned, to be applied as a cash payment upon the contract, and that it was obtained and paid over to the said firm, and that the plaintiff and his copartners had the full benefit thereof. He further states that it was part of the agreement with said firm that the plaintiff should execute said note as surety. The defendant avers that he was induced to execute said note for the purpose of procuring the loan aforesaid by the false and fraudulent representations of the plaintiff, and that he was induced to execute the two $500 notes by the same fraudulent conduct, and that in consequence of said fraudulent representations he has been injured in the sum of $2,000. A demurrer was sustained to this portion of the answer, and the defendant elected to stand by the answer. The correctness of this ruling is now questioned by the second and third assignments of error. There was a trial upon an issue raised upon another portion of the answer, which set up a different ground of defense, and a finding and judgment for the plaintiff.

We are not advised wherein the defense or counter-claim stated was supposed by the court to be defective, save by the demurrer itself, which says, referring to a part of the defense designated by certain words and lines, 'that the same does not state facts sufficient to constitute a cause of action, nor does the same constitute any defense to plaintiff's cause of action, or to any of the causes of action set forth in plaintiff's complaint.' The residue of this defense is separately demurred to upon the same grounds. We observe, in the first place, that, whatever defects may exist in the portion of the answer under consideration, the demurrer is 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 that he has been injured thereby in the sum stated. Treating it, however, as two distinct defenses, the language of the demurrer is, 'Comes now the said plaintiff and demurs to all that part of the defendant's said answer, made and filed herein, from and including the fourteenth line,' etc., and assigning the ground of demurrer above stated. It then proceeds: 'And the said plaintiff, further demurring to said answer, demurs to all that part of the said answer from and including the words 'that said note,' in line number ten,' etc., and concludes with the same objection above stated. The connected structure of a pleading cannot thus be destroyed or disjoined at the pleasure of a pleader and its disconnected averments separately demurred to; such a practice is not to be tolerated. We will, however, proceed to inquire whether this portion of the answer contained sufficient facts to constitute a cause of action or ground of defense.

In Bliss, Code Pl. § 425, it is said of a demurrer, for the objection here made, that the pleading, to be subject to demurrer, 'must present defects so substantial in their nature and so fatal in their character as to authorize the court to say--taking all the facts to be admitted--that they furnish no cause of action whatever.' Now, regarding the averments of the answer to be true, there is presented as a counter-claim to the cause of action the following facts: The defendant was induced, by representations made by the plaintiff, to purchase what he was led to believe was a highly remunerative business, obligating himself to pay therefor, together with the stock necessary to operate the same, the sum of $4,500. The representations were not true and the plaintiff knew them to be false when he made them. He represented that the business was paying his firm, and would pay the defendant, $600 per month over and above running expenses, whereas the fact was that it was not paying the proprietors anything at the time of the sale, and could not be made to pay anything over running expenses. The representations were fraudulently made for the purpose of inducing the defendant to purchase a worthless business and the property connected therewith. Being a private business enterprise, the facts whether or not it was a profitable enterprise and to what extent were peculiarly within the knowledge of the plaintiff and the partners whom he represented. The defendant is not presumed to have had any knowledge on the subject except as obtained from the owners. He relied upon the statements made to him on their behalf, as he had a right to do, and dealt with him as with honest men. The result was that he was grossly deceived and defrauded. Instead of...