Pestal v. O'Donnell, 11737.
| Decision Date | 28 March 1927 |
| Docket Number | 11737. |
| Citation | 81 Colo. 202,254 P. 764 |
| Parties | PESTAL v. O'DONNELL. |
| Court | Colorado Supreme Court |
Error to District Court, Prowers County; A. F. Hollenbeck, Judge.
Action by Joseph P. O'Donnell against Joseph Pestal for specific performance. Judgment for plaintiff, and defendant brings error and applies for supersedeas.
Supersedeas denied, and judgment affirmed.
Told & Underwood, of Lamar, for plaintiff in error.
Gordon & Gordon, of Lamar, for defendant in error.
Action for specific performance brought by O'Donnell against Pestal. Judgment for plaintiff, O'Donnell, and defendant Pestal, brings the case here and applies for supersedeas. The plaintiff in error will be hereinafter referred to as the 'defendant,' and the defendant in error as the 'plaintiff.'
On August 12, 1925, plaintiff was the owner of a half section of land located about 13 miles from Lamar, with water rights consisting of 144 shares in the Ft. Lyon Canal Company, and defendant was the owner of residence property in the city of Lamar. On that date the parties met for the first time, and entered into a written contract, by which the plaintiff agreed to exchange his south quarter section of land, being the northwest quarter of section 29, township 22 south, of range 48 west, together with .72 of a cubic foot of water per second of time, derived from the canal of the Ft Lyon Canal Company, and represented by 72 shares of the capital stock of that company, for the defendant's residence in Lamar, described as lot 5 in block 40.
The plaintiff, by the terms of the contract, agreed to convey his land by good and sufficient warranty deed, free and clear of all liens and incumbrances, except an incumbrance of $6,500 to the Western Securities & Investment Company, with interest thereon after August 4, 1925, and taxes for the year 1925 and special drainage assessments falling due after the year 1925. The possession of the lands to be conveyed to defendant was to be delivered at the expiration of a lease then existing thereon, and subject thereto. The contract contained this further provision:
The defendant's contentions are:
(1) That the plaintiff failed to perform his contract in that he never tendered to defendant an abstract of title showing a good and merchantable title in plaintiff to the land and water rights described in the contract. Also, that no deed was tendered by the plaintiff prior to the trial.
(2) That the plaintiff's property, which by the contract he agreed to convey to defendant, was grossly inadequate and out of proportion to the value of defendant's property, and was of no value whatever.
(3) That defendant was induced to enter into the contract by certain false and fraudulent statements and representations, made by plaintiff to defendant immediately prior to the execution of the contract, consisting of the following: That the land was good, productive land, and ought to return a rental of $1,500 per year to the owner; that the water rights used and applied on the land, derived from the 72 shares of the capital stock of the Ft. Lyon Canal Company, were reasonably sufficient for the proper irrigation of all of the land to be conveyed; and that the drainage tax or assessments against the land on account of the bonded indebtedness of the McClave drainage district, in which the land was situated, amounted to only $200 per year, payable for 20 years, making a total payment during said term of only about $2,400.
The finding of the court was general. The defendant claims that the evidence was not sufficient ot support the finding of the court, and that the finding and decree were an abuse of discretion. Defendant calls our attention to Davis v. Pursel, 55 Colo. 287, 134 P. 107, and Hawkins v. Elston, 58 Colo. 400, 146 P. 254. In the Pursel Case this court held that an appellate tribunal may examine the evidence in a case of this character to ascertain if the trial court had the right conception of the law, if its conclusions are supported by the evidence, or are fair deductions therefrom; that if upon the whole case it is reasonably certain that the decree is palpably unwarranted, though it may be slightly supported by the evidence, nevertheless it should be set aside:
But 'if the decree is supported by the evidence, under a proper conception of the law, it should not be disturbed, though the reviewing tribunal might have, if passing upon the matter in the first instance, reached a different conclusion.'
We further held in that case that it is a question for the trial court as to the convincing effect of the evidence; that, if there is a fair quantum of proper evidence to support its conclusions, we should presume that it was governed by the proper rules of law, unless the contrary appears. It was further said in that case:
'It is that court, not this, which must determine the credibility of the witnesses, pass upon the weight of their evidence and find the facts.'
The doctrine there announced is affirmed in Hawkins v. Elston, supra. We shall now consider briefly the evidence. The defendant testified that plaintiff came to his office and said he had some land he would like to trade for the defendant's residence property, and that he went out in the afternoon to see the land; that the land was about 13 miles from Lamar on the Santa Fé Trail; that they drove up to the house, and then went over into the cornfield, which was a short distance from the house, and came back; looked around from there and then drove up the trail as far as the land reached; that there was a field on the west that had not any crop at all. It was some broken land; that there was a field of corn on the east end of the land; that the land was crossed by the drainage ditch of the McClave drainage district; that plaintiff told him that the assessments were payable annually; that they totaled about $2,400; that the annual payments were about $200; that plaintiff told him that he, plaintiff, had 144 shares in the Ft. Lyon Canal Company, and he would divide that; that his statements led defendant to believe that there was sufficient water for irrigation; that the conversation he had with plaintiff led defendant to believe that there was plenty of water; that he did not go over the west end or south part of the west end, where he said there was some seepage water from other land coming on there; 'he told me about the productivity of the land, he said that it was all good land;' that the land which had been seeped, now, since the drainage ditch was put in, was in fine shape, and that it would make the best of sugar beet land; sugar beets could be planted at once and grown good crops upon it; that the productivity was such that a fellow could expect at least $1,500 or more a year rental; that the productivity was such that he believed that, had he the health he had in previous years, he could go upon the place and in three years' time pay out all indebtedenss against the place.
Defendant also testified that he was a practicing physician; had been living and practicing medicine in Lamar for about 7 1/2 years; testified that he had no personal experience in farming under irrigation; that what little experience he had was handling a piece of land north of town under the Amity ditch; that he had no experience in handling or managing land under the Ft. Lyon Canal; that he believed plaintiff's statement that the land ought to return a rental of $1,500 a year. Then the witness further testified:
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