Metzger v. Baker

• Citation: 93 Colo. 165,24 P.2d 748
• Decision Date: 02 August 1933
• Docket Number: 12823.
• Parties: METZGER et al. v. BAKER.
• Court: Supreme Court of Colorado

24 P.2d 748

93 Colo. 165

METZGER et al. v. BAKER.

No. 12823.

Supreme Court of Colorado

August 2, 1933

In Department.

Error to District Court, City and County of Denver; E. V. Holland Judge.

Action by Clara A. Metzger and Carl Metzger against A. D. Baker. Judgment of nonsuit at close of plaintiffs' evidence, and plaintiffs bring error.

Affirmed.

James E. Garrigues, Harry W. Robinson, and Sarchet & McClain, all of Denver, for plaintiffs in error.

A. B Manning and Donald F. Clifford, both of Denver, for defendant in error.

BURKE Justice.

Plaintiffs in error are hereinafter referred to as plaintiffs, and defendant in error as defendant.

Plaintiffs bought a Denver drug store of defendant and one Phipps, for $10,000. They brought this suit for $5,000 damages which they alleged they had sustained by reason of false representations made to them in that sale. Phipps was not served, and the cause went to trial against defendant alone. At the close of plaintiffs' evidence the court sustained defendant's motion for nonsuit and entered judgment accordingly. To review that judgment plaintiffs prosecute this writ.

The answer contained a general demurrer, and the court's findings were general. If, therefore, the complaint is vulnerable to the demurrer the judgment must be affirmed; if not, but the complaint is nevertheless unsupported by the evidence, the same result follows; otherwise the judgment must be reversed. The only valid assignments go to these points.

The misrepresentation relied upon was that a city zoning ordinance zoned the district in which the store was located as residential and prevented the establishment therein of another drug store, or the erection of additional business buildings, whereas there was no such ordinance, and shortly after the purchase another building was built and a drug store opened therein.

The price at which the sale was made was fixed by defendant Before he met or negotiated with plaintiffs, and Before any representations concerning the ordinance had been made. Such alleged representations were only that such an ordinance existed at the time when defendant himself had purchased the business. There were other business buildings in the immediate vicinity. This was known to plaintiffs, but they made no inquiry as to the possibility of drug stores being opened therein. When the contract was executed plaintiffs were represented by counsel who testified that he knew the zoning ordinance did not prohibit the location of another drug store in such buildings. Plaintiff, Clara A. Metzger, gave as her reason for failing to investigate that possibility, 'I didn't think they would be foolish enough to come in within a block of me.' She also gave it as her opinion that the business was worth $10,000 if the representations had been true, but only about $5,000 if false. Her evidence in support of this conclusion, however deals only with decreased sales after competition came, but leaves untouched most of the other elements which might have caused the decrease, and hence furnished no guild for determining damages. Six months after the deal was closed plaintiffs learned the new drug store was...