Kruger v. Smith

Decision Date03 October 1927
Docket Number11738.
Citation82 Colo. 380,260 P. 97
CourtColorado Supreme Court

Department 2.

Error to District Court, El Paso County; Wilbur M. Alter, Judge.

Action by Anna Kruger against Alvy Smith. Judgment for defendant and plaintiff brings error.


Orr &amp McGarry, of Colorado Springs, and Jos. R. Long, Jr., of Boulder, for plaintiff in error.

Samuel H. Kinsley and Leon H. Snyder, both of Colorado Springs, for defendant in error.


The plaintiff, Mrs. Kruger, sued the defendant, Smith, to recover $25,000 as compensation for the loss she sustained as the result of an alleged breach by the defendant of his promise to marry her. The answer denies the averments of the complaint and as an affirmative defense pleads a written general release by the plaintiff under seal of all the present and future claims and demands whatsoever which she has or can or would or might have against the defendant. At the close of the plaintiff's evidence the defendant's motion for a nonsuit was denied. The defendant then produced his evidence and at its close the court, on defendant's motion therefor, directed a verdict for the defendant and rendered judgment thereon that plaintiff take nothing and that defendant recover his costs the motion for a directed verdict set up six grounds. In its decision upon it the trial court did not specifically indicate upon what particular ground or grounds its decision sustaining the motion was based. For that reason plaintiff has discussed all of them. In view of our conclusion however, that the judgment is right and must be affirmed five of the grounds are not passed upon because the general release which the plaintiff signed bars her recovery in this action, irrespective of the other five grounds of the motion. In passing, however, it is proper to observe that the record sufficiently shows that the verdict for the defendant was directed because the trial court deemed the written instrument of release, which the plaintiff admitted she signed, includes the alleged breach of marriage on which her action is based, and the force and effect of that release was not weakened or overcome by the evidence which the plaintiff produced in support of her amended replication in which she charges that her signature to the release was procured by the fraudulent representations of the defendant.

Assuming then for our present purpose, but not so deciding, that the other five grounds of the motion not considered by us are not well taken, we consider only the defense of the release. We do not understand that the plaintiff contends that this release is not on its face, and, if it is not canceled or destroyed, a full discharge of her cause of action for a breach of the marriage contract. Her position, is, as we understand it, that the release was procured from her by the defendant by his fraudulent acts and conduct and therefore does not bar the action.

The second amended replication, which alleges fraud in securing the release, bears evidence that it was fashioned on what appears in the case of Kilpatrick v. Miller, 55 Colo. 419, 135 P. 780. It is a good pleading on its face. If it is sustained by 'clear and convincing evidence,' it destroys the release. A careful consideration of the evidence in this record which the plaintiff produced in its support, not considering the evidence of the defendant to the contrary, falls far short of the requirements of the rule in such cases. Spitze v. B. & O. R. Co., 75 Md. 162, 23 A. 307, 32 Am.St.Rep. 378-384; Alabama, etc., Ry. Co. v. Jones, 73 Miss. 110, 55 Am.St.Rep. 488, 507, 508, 512, 513; Fivey v. Penna. R. Co., 67 N. J. Law, 627, 52 A. 472, 91 Am.St.Rep. 445-451; D. & R. G. R. Co. v. Ptolemy, 69 Colo. 69, 169 P. 541. The rule is the same as in actions to set aside deeds to real estate. Mathews v. Mathews, 69 Colo. 333, 194 P. 358. See, also, Guldager v. Rockwell, 14 Colo. 459, 461, 464, 24 P. 556; D. & R. G. R. Co. v. Sullivan, 21 Colo. 302-309, 41 P. 501; Harvey v. D. & R. G. R. Co., 44 Colo. 258, 99 P. 31, 130 Am.St.Rep. 120; Marthinez v. Martinez, 57 Colo. 292-299, 141 P. 469; Butsch v. Smith, 40 Colo. 64, 90 P. 61; Enos v. Anderson, 40 Colo. 395-399, 93 P. 475, 15 L.R.A. (N. S.) 1087; Stotts v. Carney, 78 Colo. 472, 242 P. 675.

As already stated, the release on its face is a complete bar to this action. No particular injury or injuries are mentioned therein. It is sweeping and general in its nature, as was a similar instrument in Colorado Co. v Huntling, 66 Colo. 515, 518, 181 P. 129. We held in that case, and the holding is just as applicable and pertinent in this case, where a defense to a release is fraudulent conduct in securing the same by the one released, proof of the fraud in its execution 'must be clear and convincing.' It was also said in that case that there must be some evidence before the jury which it would be entitled to consider as 'clear and convincting' and that there was no such evidence there. We have read the transcript itself, not merely the printed abstract of it, and are satisfied that the...

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4 cases
  • Winslett v. Rozan
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 13, 1960
    ...instead of a mineral deed, her negligence in that regard would certainly afford no grounds for setting it aside. And see Kruger v. Smith, 82 Colo. 380, 260 P. 97. Other circumstances, e. g., inadequacy of consideration, lateness of recording, and discrepancies between property descriptions ......
  • Wallick v. Eaton
    • United States
    • Colorado Supreme Court
    • February 15, 1943
    ...Denver & R. G. R. Co. v. Sullivan, 21 Colo. 302, 41 P. 501; Goodstein v. Silver Plume Mines Co., 79 Colo. 269, 245 P. 714; Kruger v. Smith, 82 Colo. 380, 260 P. 97; Haefeli v. Ahlstrand, 101 Colo. 296, 73 P.2d This leaves for determination only the question as to whether or not it was neces......
  • Wagoner v. Mountain Savings and Loan Association, 6961.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 3, 1962
    ...action unless the validity of the releases can be successfully questioned. Guldager v. Rockwell, 14 Colo. 459, 24 P. 556; Kruger v. Smith, 82 Colo. 380, 260 P. 97. The burden of proving that the release was invalid or void must be borne by the party which would avoid its operation, Denver &......
  • Barnett v. Clouse
    • United States
    • Colorado Supreme Court
    • January 13, 1969
    ...Grande Railroad) Co. v. Sullivan, 21 Colo. 302, 41 P. 501; Goodstein v. Silver Plume Mines Co., 79 Colo. 269, 245 P. 714; Kruger v. Smith, 82 Colo. 380, 260 P. 97; Haefeli v. Ahlstrand, 101 Colo. 296, 73 P.2d We have carefully reviewed the record in this respect and find that plaintiffs' ev......

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