Jessey v. Butterfield

Decision Date06 March 1916
Docket Number8551.
Citation157 P. 1,61 Colo. 256
CourtColorado Supreme Court

Rehearing Denied May 1, 1916.

Error to District Court, Montrose County; Thomas J. Black, Judge.

Action by O. L. Jessey against R. Butterfield. From a judgment dismissing the cause, the plaintiff brings error. Affirmed.

Hugo Selig and Henry A. Cox, both of Montrose, and Crump & Allen, of Denver, for plaintiff in error.

Charles J. Moynihan and Dan H. Hughes, both of Montrose, for defendant in error.


The plaintiff in error brought suit against the defendant in error on the ground of fraud in the sale to plaintiff by defendant of stock in the Montrose Fruit & Produce Association. The complaint alleges that the defendant, for the purpose of inducing plaintiff to purchase 50 shares of said stock, falsely represented to plaintiff that the capital stock of said corporation was $10,000, whereas in fact it was $25,000, of which fact plaintiff was ignorant; 'that upon said false statements said Jessey purchased 50 shares of said stock,' paid $2,000 in cash therefor, and gave to defendant a promissory note for $2,000, the balance of the purchase price; that by reason of the premises plaintiff had been damaged in the sum of $4,000. Plaintiff prays judgment for $2,000 with interest and for the cancellation of the promissory note; also for an injunction against the sale of the stock which was held as security for said note. The defendant answered setting up several defenses in addition to a denial of many of the averments of the complaint. Upon the coming in of the answer the plaintiff moved to strike out of the answer several of the defenses and to strike the entire answer. It appears from the supplementary abstract, filed by defendant in error, that the motion was also for judgment on the pleadings. On the hearing of this motion the court held that the complaint did not state a cause of action, and, the plaintiff electing to stand upon his complaint, the cause was dismissed.

Error is assigned on this action of the court, and it is urged that there was no motion for judgment on the pleadings before the court, and, further, that the complaint states a cause of action; and that, in any event, failure to state a cause of action is not ground for dismissing a complaint; it being subject to amendment.

As to the first objection it is sufficient to say that the abstract of record shows that the motion asks that 'plaintiff have judgment for such sum as he shall establish by requisite proof.' That a motion to strike out the answer and at the same time ask for judgment is proper is directly held in Steinhauer v. Colmar, 11 Colo.App. 494, 55 P. 291. The motion assumed the existence of conditions which would justify the entry of a judgment, the amount for which it was to be entered being determined from evidence, and the party making the motion cannot now consistently object to the entry of a judgment.

Plaintiff's motion for judgment could not be sustained unless the complaint stated a cause of action. The court was therefore required to determine whether or not the complaint was sufficient. People ex rel. v. Brown, 23 Colo. 425, 48 P. 661. The court found that the complaint did not state a cause of action, and we must assume that the dismissal of the suit was due to the fact that plaintiff declined to amend, electing to stand on his complaint. There was therefore no error in the order, unless the court erred in holding the complaint insufficient. If the complaint is bad, it is immaterial whether or not the court pointed out the real defects in it,...

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9 cases
  • Colorado Inv. & Realty Co. v. Riverview Drainage Dist., 11744.
    • United States
    • Colorado Supreme Court
    • April 2, 1928
    ... ... 1036; Lexington Colorado ... Auto Co. v. Grigsby, 76 Colo. 328, 231 P. 160. The present ... holding is not inconsistent with the holding in Jessey v ... Butterfield, 61 Colo. 256, 157 P. 1, which states the general ... rule. In the present case, as we have said, court and counsel ... acted ... ...
  • Gertner v. Limon Nat. Bank
    • United States
    • Colorado Supreme Court
    • June 6, 1927
    ... ... R. Co. v. Sullivan, 21 Colo. 302, 41 P ... 501; Denver & R. G. R. R. Co. v. Ptolemy, 69 Colo. 69, 169 P ... 541; 27 C.J. p. 40, § 165; Jessey v. Butterfield, 61 Colo ... 256, 260, 157 P. 1, and many other cases ... 14. No ... fraud was committed by the bank on Gottlieb ... ...
  • Fidelity Finance Co. v. Groff
    • United States
    • Colorado Supreme Court
    • September 10, 1951
    ...constituting the fraud, and, as we said in Goff v. Boma Investment Co., 116 Colo. 359, 181 P.2d 459, 460, quoting from Jessey v. Butterfield, 6s Colo. 256, 157 P. 1: 'Fraud is never presumed, and a contract should not be adjudged void for fraud, unless the allegations and proofs of fraud ar......
  • People v. Espinoza, 11673.
    • United States
    • Colorado Supreme Court
    • March 28, 1927
    ...our own decisions, are in accord with our view of the complaint: People ex rel. v. Brown et al., 23 Colo. 425, 48 P. 661; Jessey v. Butterfield, 61 Colo. 256, 157 P. 1; Farmers' Independent D. Co. v. Agricultural D. Co., Colo.App. 255, 32 P. 722; Downing v. Agricultural D. Co., 20 Colo. 546......
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