Hinsey v. Jones

Decision Date21 February 1966
Docket NumberNo. 20934,20934
PartiesRalph C. HINSEY and Marguerite L. Hinsey, Plaintiffs in Error, v. Henry W. JONES and Pauline Jones, Defendants in Error.
CourtColorado Supreme Court

J. H. Boutcher, John Gibbons, Robert Smedley, Denver, for plaintiffs in error.

Harold A. MacArthur, Denver, for defendants in error.

McWILLIAMS, Justice.

Ralph and Marguerite Hinsey, as plaintiffs, brought an action against Henry and Pauline Jones, the defendants, for breach of contract. Upon motion the trial court dismissed the plaintiffs' second amended complaint, and by writ of error the plaintiffs now seek reversal of this judgment of dismissal.

In their second amended complaint the plaintiffs alleged that they suffered damage as a result of the defendants' refusal to permit the plaintiffs to use water from a well located on the defendants' property, all of which was said to constitute a breach of an agreement between the parties. By a written agreement to exchange property, the plaintiffs agreed to trade certain residential property located in Denver to the defendants for certain property located in Park County on which were situate tourist cabins and trailer sites. It appears that the defendants also owned a restaurant immediately adjacent to the property which they traded to the plaintiffs; the restaurant property, however, was retained by the defendants who continued to operate it. On the property where the restaurant was situated was a well and pump, and according to the second amended complaint the defendants as a part of the agreement to exchange property agreed to permit the plaintiffs to use water from their well in connection with their operation of the tourist court.

More specifically, in their second amended complaint the plaintiffs alleged that as a part of the agreement between the parties 'the defendants were to permit the plaintiffs to use their well and pump for the purpose of obtaining water' and that in return therefor the plaintiffs were to pay defendants the sum of $2.00 per month to apply on the costs of electricity to operate the pump and to share in the cost of any repairs on an equal basis. It was further alleged that in conformity with the agreement between the parties the defendants for a period of about two and one-half years did permit the plaintiffs to obtain and use water from the defendants' well, in return for which the plaintiffs had paid the defendants the sum of $2.00 per month as called for by the agreement, but that beginning in 1958 'in total disregard of the agreement entered into by plaintiffs and defendants, the defendants, and each of them, * * * did refuse and neglect to permit the plaintiffs to use water from the defendants' well * * *.' As a result of defendants' refusal to permit the plaintiffs to use the water 'specified in the agreement to exchange property,' plaintiffs averred that they were damaged in that they were forced to drill a well on their own property and that there was also some loss of business and profits in the operation of their tourist court.

Attached to the complaint was a copy of the written agreement between the parties. The written agreement, however, contained no express term or provision whereby the defendants agreed to furnish water to the plaintiffs, though it did contain a proviso that plaintiffs were to pay defendants $2.00 per month to apply on the cost of electricity to operate the pump, as well as to share any repair expense.

The trial court dismissed plaintiffs' second amended complaint presumably on the ground that, inasmuch...

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15 cases
  • Bueno v. Denver Pub. Co.
    • United States
    • Colorado Court of Appeals
    • March 2, 2000
    ...from his response to the reactions of third persons to defendant's newspaper article. This was sufficient. See Hinsey v. Jones, 159 Colo. 326, 411 P.2d 242 (1966). In light of this state of the evidence, we need not consider whether special damages must be proved as an element of a false li......
  • Rosenthal v. Dean Witter Reynolds, Inc.
    • United States
    • Colorado Supreme Court
    • December 18, 1995
    ...for failure to state a claim so long as the pleader is entitled to some relief " 'upon any theory of the law.' " Hinsey v. Jones, 159 Colo. 326, 329, 411 P.2d 242, 244 (1966) (emphasis added by Hinsey court) (quoting Weick v. Rickenbaugh Cadillac Co., 134 Colo. 283, 289, 303 P.2d 685, 688 (......
  • Hannon Law Firm, LLC v. Melat, Pressman & Higbie, LLP
    • United States
    • Colorado Court of Appeals
    • March 3, 2011
    ...upon any theory of the law relief is warranted by the evidence offered and received in support of the claim....” Hinsey v. Jones, 159 Colo. 326, 329, 411 P.2d 242, 244 (1966) (quoting Weick v. Rickenbaugh Cadillac Co., 134 Colo. 283, 289, 303 P.2d 685, 688 (1956)). Because it presents a que......
  • Denny Const. v. City and County of Denver
    • United States
    • Colorado Court of Appeals
    • February 22, 2007
    ...to impose liability under its legal theory of breach of the implied covenant of good faith and fair dealing. Cf. Hinsey v. Jones, 159 Colo. 326, 329-30, 411 P.2d 242, 244 (1966) (allegation of breach of written contract did not preclude recovery on another theory where complaint gave notice......
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