Oakes v. Miller

• Decision Date: 14 November 1898
• Citation: 11 Colo.App. 374,55 P. 193
• Parties: OAKES v. MILLER.
• Court: Colorado Court of Appeals

55 P. 193

11 Colo.App. 374

OAKES v. MILLER.

Court of Appeals of Colorado

November 14, 1898

Appeal from district court, Arapahoe county.

Action by Charles Miller against J.L. Oakes for deceit. Plaintiff had judgment, and defendant appeals. Affirmed.

W.J Weeber and M.B. Carpenter, for appellant.

Charles M. Bice, for appellee.

THOMSON P.J.

Action for deceit by appellee against appellant. The complaint alleged that in July, 1894, the plaintiff was induced to purchase from the defendant, for the purpose of a residence and to be used for raising hogs and poultry, a small tract of land bordering on Cherry creek, in Arapahoe county, by the false representation of the defendant that the water in Cherry creek, which, at the time, was very low, never would rise, and never had risen, more than seven inches higher than it was then running; that the defendant, when he made the representation, knew the character and habits of Cherry creek, and knew that the water was at any time liable to rise in the creek from ten to twenty feet, and overflow its banks, and that the land was not a suitable place to raise hogs, or safe for a residence; that, shortly after the purchase, the water in Cherry creek rose three feet, and overflowed the land, and carried off and destroyed a number of articles of personal property belonging to the plaintiff. The complaint further averred that the plaintiff paid, of the purchase price of the land, $50 in cash, and gave his notes for the residue, secured by mortgage upon other property belonging to him; that he built a house upon the land, which he afterwards removed, and that the time he expended on the building and removal of the house was worth $100; that the mortgaged property was taken by the defendant and applied on the purchase price of the land; that the plaintiff, when he made the purchase, knew nothing of the liability OF cherry creek to overflow, and relied on the defendant's representations; that, upon discovering that the representations were false, he made and acknowledged a deed reconveying the land to the defendant, and tendered it to him, and also demanded a return of the $50 which he had paid, and the notes and mortgage, but that the defendant refused to receive the deed, or return the money or the notes and mortgage. The complaint contained a tender of the deed, and alleged the total damage by reason of the fraud to be $476.80, for which sum, with costs, judgment was prayed. The trial eventuated in a verdict and judgment in the plaintiff's favor for $405, and the defendant appealed.

Upon a careful examination of the record, we are unable to find any reason for a reversal of this judgment. There was evidence that at the time of the transaction the plaintiff was a stranger to Cherry creek, and knew nothing of its character or habits; that, in company with the defendant, while looking at the land with a view to its purchase, he saw the creek for the first time, and asked the defendant whether it ever rose and the defendant replied that it sometimes did, seven or eight inches; that it would not rise more than seven or eight inches, and, if it ever did rise, it would not come up to the bank. The plaintiff testified that a rise no greater than that would be attended with no danger, and that he thereupon concluded the purchase. The occurrence of the flood shortly afterwards, and the loss as stated in the complaint, were proven. There was evidence that Cherry creek was subject to floods, and that the defendant knew its habits conclusively appears from...