Kilpatrick v. Miller

• Decision Date: 06 October 1913
• Citation: 55 Colo. 419,135 P. 780
• Parties: KILPATRICK v. MILLER.
• Court: Colorado Supreme Court

135 P. 780

55 Colo. 419

KILPATRICK v. MILLER.

Supreme Court of Colorado

October 6, 1913

Error to District Court, City and County of Denver; Carlton M Bliss, Judge.

Action by Charles N. Miller against James R. Kilpatrick. Judgment for the plaintiff, and defendant brings error. Reversed and remanded.

S. H. Thompson, of Denver, for plaintiff in error.

S. S Abbott, of Denver, for defendant in error.

GARRIGUES J.

1. An action was commenced by defendant in error Miller, plaintiff below, to recover from Kilpatrick damages caused by his alleged false representations regarding an irrigation project on Skull creek, in what is now Moffat county, near the Utah line.

The complaint alleges that in May, 1909, defendant, Kilpatrick represented to the plaintiff that there was a project involving the irrigation of arable lands in Routt county which, when developed, would water not less than 10,000 acres lying under a proposed reservoir on Skull creek; that said reservoir with its watershed and a living stream of five cubic feet of water per second, tributary thereto would irrigate said amount of land; that, if plaintiff would advance to him $500, defendant would make the necessary filing on the reservoir site and water rights with the proper authorities; that, acting and relying upon these representations of the defendant, he made and entered into a contract with him wherein, in consideration of $500 in cash defendant agreed to make a survey and file on said reservoir site, to transfer a half interest therein to the plaintiff, and also to take plaintiff to the proposed site for an inspection of the same; that the amount of arable and tillable land thereunder was not 10,000 acres and was not to exceed 2,000 acres which could be cultivated, and there were no adequate water rights nor watersheds and no living stream as represented by the defendant; that, acting upon and believing the representations to be true, plaintiff advanced to and paid defendant $500, which he otherwise would not have done; that defendant is and has been holding himself out to be a civil engineer, thoroughly conversant with water and water rights and lands tributary and irrigable thereunder, and plaintiff relied upon his statements and supposed knowledge in parting with his money; that defendant in making such representations was guilty of fraud and willful deceit and has never been convicted in any criminal proceeding for the same wrong; that the contract was to be performed in the city and county of Denver, where the money was paid and where all the misrepresentations were made and fraud committed; that defendant has never prepared and filed the necessary documents and maps with the state engineer and has never turned over to plaintiff an undivided half interest or any interest in the project contemplated by the contract. Prayer for money judgment and body execution. In answer to a motion to make more specific, plaintiff declared in open court that his action was founded on tort. To the complaint a general demurrer was filed and overruled. Defendant then answered, pleading inter alia that on July 6, 1909, he prepared and filed with the state engineer filings and maps of the Skull creek reservoir site as in the contract provided; that he also prepared and executed an assignment to plaintiff of an undivided half interest in and to the project; that, being in Routt county, he inadvertently failed to turn over this assignment, but that on November 16, 1910, he tendered the same to plaintiff, who refused to accept it, and the same is tendered in court with the pleadings; also that he has made and tenders to plaintiff a quitclaim deed of the half interest in addition to the assignment. To this answer a replication was filed which, among other things, admits the execution of the assignment and deed but alleges that defendant is estopped from claiming anything on account of the tender for the reason that he did not immediately, after making the filings in the engineer's office, convey a half interest to the plaintiff as required by the contract, and that any tender made was not in a reasonable time; also that the offer of the quitclaim deed is inadmissible and incompetent because defendant is estopped from making it, for the reason that it never was tendered except in the answer. September 2, 1911, defendant filed a motion for judgment on the pleadings, which was denied, whereupon he declared his intention to stand upon said motion. October 19, 1911, the cause was tried to the court without a jury; the defendant appearing by counsel and being allowed to cross-examine plaintiff's witnesses. The court rendered judgment for plaintiff in the sum of $597.55 and ordered that execution issue against the body of the defendant committing him to jail for one year, and that he would be released upon payment of the...