Sposato v. Heggs, 16500
| Citation | 233 P.2d 385,123 Colo. 553 |
| Decision Date | 21 May 1951 |
| Docket Number | No. 16500,16500 |
| Parties | SPOSATO v. HEGGS et al. |
| Court | Colorado Supreme Court |
Howard Roepnack, Denver, for plaintiff in error.
F. W. Harding, Onalee Brown, Denver, for defendants in error.
The writ of error issued in this case is for review of a judgment for $750 against plaintiffs in error Helen Sposato and William Thompson, for alleged damages for false representations concerning the sale of a small truck and delivery business owned and operated by Sposato, Thompson being one of the salesmen employed by A. R. Swain and Company, a business-chance operator. Swain, and Swain and Company were dismissed from the case.
Emma Heggs and Chesley Heggs, her son, defendants in error, were the purchasers, and about two weeks after August 3, 1948, the date of the consummation of the sale and purchase, they elected to affirm the sale and file this action for damages in the sum of $2,500 resulting from false representations allegedly made by Sposato and Thompson. Various motions were separately filed by defendants Sposato and Thompson; and separate answers were filed in due course denying the representations; denying damage, and alleging that plaintiffs have waived any right to an action for damages. The case was tried to a jury and the above-mentioned judgment was entered on its verdict against the defendants Sposato and Thompson. Motion for new trial was filed and overruled. Alfred R. Swain, doing business as A. R. Swain and Company, and A. M. Pember were also joined as defendants; however, after dismissal as to them, they no longer appear in the separate records before us. On one record of the trial court we have two separate writs of error one each, for Sposato and Thompson. This opinion is directed to No. 16500, being Helen Sposato, plaintiff in error v. Emma Heggs and Chesley Heggs, defendants in error.
Sposato, through counsel, specified sixteen points for reversal, the substance of which is error in giving and refusing certain instructions and in permitting plaintiffs to amend their complaint during the course of the trial without granting defendant Sposato the opportunity to prepare for the new cause of action introduced by the amendment; further, that the weight of the evidence is against the verdict; and that the court erred in refusing to direct a verdict in Sposato's favor at the conclusion of the trial.
The allegations of the original complaint are in effect that, during the month of July 1948, defendant Swain and Company showed plaintiffs a small delivery serivce business located at 2436 Larimer street, together with an Internatinal truck and certain office equipment that was then and there owned by defendant Sposato; that at the time Swain, individually and by his employees Pember and Thompson, represented to plaintiffs that the business had four or five good accounts which had been, and were then and there, paying the owner of said business the sum of $1,200 per year; that the owner of the property next door provided sufficient amount of business each month to pay the rent on the premises occupied by defendant Sposato; that plaintiffs believed the representations, relied upon them, and entered into a written contract for the purchase of the business; that immediately prior to the signing of the contract, defendant Sposato stated that a Mr. Stevens had offered her $1,100 for the International truck, when in truth and in fact no such offer ever was made; that such representations by defendant Sposato constituted a false inducement to plaintiffs in signing the contract; that the representations made by Swain and his employees, Pember and Thompson, and Sposato were false, and known by them to be false; but were made to plaintiffs with the intention that they rely thereon, which they did to their damage in the sum of $2,500.
The amendment to the complaint, allowed during the proceedings of the trial over the objection of counsel for Sposato, was as follows:
There was a failure on the part of plaintiffs to prove that Sposato did not receive an offer of $1,100 for the truck, or that the truck was not worth $1,100. On motion, the court dismissed this part of the complaint, leaving only the cause of action against Sposato as set out in the amendment.
The evidence shows that in response to an advertisement concerning a bakery, made by Swain and Company, plaintiff Mrs. Heggs and her daughter Violet, on Saturday, July 31, 1948, went to the office of Swain and Company in response to the advertisement and there met defendant Thompson. On account of the number of people, Thompson could not provide transportation in his coupe and a larger car belonging to a Mr. Lentz was used, and Mr. Lentz drove all of them to inspect the bakery. Plaintiffs were not interested in the bakery and they then went to a place on North Federal to inspect a chicken-raising business, and again were not interested. On the way back to Swain's office, Thompson mentioned the business of Sposato and plaintiffs claim that he said the business had three or four accounts bringing in a thousand or more dollars a year. This was denied by Thompson. Sposato was not present, because this was before they had reached her place of business. Sposato's delivery service was on the ground floor of a building at 2436 Larimer street, into which the trucks backed, and when they arrived, the truck involved in this transaction was in the building. The office of the business was completely enclosed and north of where the truck stood. Plaintiff Mrs. Heggs testified that Thompson there made the statement in the presence of Mr. Lentz and her daughter, that the business was taking in enough from the service next door to more than pay the rent; that at that time, the representations were made out in the building and Mrs. Sposato was in the office; and that the conversation took place while they were between the truck and the office door; that she did not notice what Sposato was doing in her office and did not know whether she was listening to the conversation or not; and that she had no direct conversation with Sposato that morning.
Plaintiff's...
To continue reading
Request your trial
-
TA Pelsue Co. v. Grand Enterprises, Inc., Civ. A. No. 89-S-1645.
...CJI-Civ.3d 19:17 (1990). Actual damages are a necessary element of Pelsue Co.'s cause of action in deceit. Sposato v. Heggs, 123 Colo. 553, 561, 233 P.2d 385, 388 (1951). Actual damages may consist of: (1) the difference between the market value of the property and what its value would have......
-
Western Cities Broadcasting, Inc. v. Schueller
...Co. v. Continental Funding Corp., 776 P.2d 1114 (Colo.1989). Actual damage is an essential element of a fraud claim. Sposato v. Heggs, 123 Colo. 553, 233 P.2d 385 (1951). And, in order to recover benefit-of-bargain damages, a fraud claimant must prove both the value of the consideration he ......
-
Corder v. Laws
...legal significance. See, also, Herfort v. Cramer, 7 Colo. 483, 4 P. 896; Peppers v. Metzler, 71 Colo. 234, 205 P. 945 and Sposato v. Heggs, 123 Colo. 553, 233 P.2d 385. As to the claim of error based on the reception and rejection of evidence, careful examination of the record convinces us ......
-
Denver Business Sales Co. v. Lewis
...court is committed to the 'benefit of the bargain rule' as stated in Otis & Co. v. Grimes, 97 Colo. 219, 48 P.2d 788, and Sposato v. Heggs, 123 Colo. 533, 233 P.2d 385. Nor was the action one is rescission. The sole issue submitted to the jury was that of the alleged fraud. Instruction No. ......