Ringsby v. Timpte, 14606.

• Decision Date: 26 December 1939
• Docket Number: 14606.
• Citation: 105 Colo. 356,98 P.2d 287
• Parties: RINGSBY et al. v. TIMPTE et al.
• Court: Colorado Supreme Court

98 P.2d 287

105 Colo. 356

RINGSBY et al. v. TIMPTE et al.

No. 14606.

Supreme Court of Colorado, En Banc.

December 26, 1939

Error to District Court, City and County of Denver; Henry A. Hicks Judge.

Action for fraud and deceit by George F. Ringsby and another against Tony C. Timpte and another, doing business under the name and style of Timpte Brothers, and another. To review a judgment of dismissal, plaintiffs, bring error and apply for a supersedeas.

Affirmed.

Moffett & Hitchcock, of Denver, for plaintiffs in error.

Clarence Eynon, of Denver, for defendants in error.

BAKKE Justice.

Plaintiffs in error brought action for damages for fraud and deceit, based upon alleged misrepresentations in connection with the sale to them of certain refrigerator transportation equipment by defendants. At the close of the plaintiffs' case, on motion of defendants for nonsuit the action was dismissed. Reversla is sought on application for supersedeas, and, because of the apparent correctness of the disposition of the case by the trial court, we proceed to determine the matter on that application.

The representations relied on for recovery were as follows:

1. That certain large packers, to wit: Swift & Co., and Armour & Co. and others, were at the time of said representations desirous of employing private parties such as the plaintiffs, under contract for the regular hauling of their products.

2. That in order to secure such a contract the said packers were at that time requiring such parties to purchase and use the type of refrigerator equipment manufactured only by Timpte Brothers.

3. That defendants had, previous to the time of the said negotiations, made certain connections and that certain understandings and agreements were then in existence between them and that said packers respecting the employment of purchasers of Timpte Brothers equipment.

4. That by virtue of their connections and agreements with the said packers, Timpte Brothers were at that time authorized by the said packers to act as their agents, and to negotiate contracts and to execute contracts on behalf of the said packing companies for such regular hauling between Chicago and Denver, and between Denver and California and intervening points, and for return loads from such points.

5. That in specifying the particular type of equipment recommended to the plaintiffs, and concerning which said negotiations were made, and in contracting with the plaintiffs for such hauling employment, the defendants were acting within their authority and as agents of the said packers.

6. That such hauling contracts could not at that time be had nor in anywise be procured without purchasing the specified equipment manufactured by Timpte Brothers.

7. That the hauling jobs were being furnished with and as a part of the purchase of the equipment.

8. That the defendants had previously secured the authority to complete the contracts for such hauling, and that such contracts could be and were being given to the plaintiffs with the purchase of the equipment on completing the arrangements therefor and procuring the necessary licenses and permits.

9. That the defendants had previously fully investigated the conditions of the hauling contracts and were familiar with the requirements of the service and the expenses and the profits under such hauling contracts, and that from their knowledge and by reason of their authority they could and did assure the plaintiffs of such immediate hauling contracts with regular and steady employment thereunder, with an assured profit in a substantial sim, to wit, the sum of fourteen hundred dollars ($1,400) per month.

Judgment was sought for $8,400, six months at $1,400 a month; for $6,023.62, the same being incurred for equipment and licenses; for $10,000 exemplary damages, and for body execution against each of the defendants.

Reference will be made to the parties as they appeared in the trial court.

All of the assignments of error can be comprehended in the one assignment that the court erred in sustaining the motion for nonsuit.

It may be conceded that certain of the alleged representations were made, as found by the trial court, but since the evidence also disclosed that the hoped-for profits were all dependent on promises of future action, the court rightly sustained the motion for nonsuit.

The record discloses that the equipment was delivered as ordered about January 29, 1934, after plaintiffs had made a down payment, and given notes for the balance, which notes were endorsed by the Timptes to a finance...