Wark v. Bopp, 15944.

Decision Date01 November 1948
Docket Number15944.
Citation119 Colo. 12,199 P.2d 892
PartiesWARK v. BOPP.
CourtColorado Supreme Court

Error to District Court, Chaffee County; Joseph D. Blunt, Judge.

Action by Cliff H. Wark, otherwise C. H. Wark, against James B Bopp, otherwise James Bopp, for reconveyance of realty and cancellation and surrender of notes secured by deed of trust wherein defendant, by way of counterclaim, sought foreclosure of his deed of trust. To review a judgment of foreclosure for defendant on his counterclaim, plaintiff brings error.


John M Boyle and Charles F. Morris, both of Salida, for plaintiff in error.

William S. Rush, of Salida, and John Stump Witcher, of Canon City for defendant in error.

ALTER, Justice.

Cliff H. Wark, plaintiff in error, plaintiff below, brought an action against James B. Bopp, defendant in error, defendant below, to secure a judgment requiring the latter to accept a reconveyance of certain premises; cancel and surrender plaintiff's notes secured by deed of trust; for actual damages in the sum of $1,700; exemplary damages in the sum of $2,500, and for $4,500 paid by plaintiff upon the purchase price of certain farm lands. Bopp, by way of counterclaim sought a foreclosure of his deed of trust. Upon trial to the court, plaintiff's complaint was dismissed and judgment of foreclosure entered for defendant on his counterclaim, to review which plaintiff brings the case here by writ of error.

The circumstances giving rise to plaintiff's cause of action grew out of the sale by defendant, and the purchase by plaintiff, of certain farm or ranch property in Chaffee county, in which sale plaintiff alleges false and fraudulent representations by defendant respecting: The productivity of the soil; the crops that could be matured thereon; sufficiency of irrigation water; title to the premises; and other representations not necessary to enumerate herein. A contract was executed by the parties in January, 1945, and the sale was consummated and possession delivered to defendant in April, 1945. On August 30, 1945, plaintiff, according to his testimony, discovered the falsity of the representations, and thereupon proposed to defendant that the latter return to him the $4,500 which he had paid upon the purchase price of the farm land and return the notes for $4,000 secured by deed of trust. Thereafter and, so far as the record discloses, until the determination of this case in the district court on March 5, 1947, plaintiff continued in possession of the farm or ranch property, cultivated the same, and harvested the crops thereon. According to plaintiff's testimony, after the discovery of the alleged falsity of defendant's representations in August, 1945, and prior to the institution of this action, he endeavored to secure a loan upon the farm or ranch property from the Federal Land Bank, which loan, plaintiff testified, was refused because of a reservation of mineral rights in the deed to plaintiff. Thereafter, at some date undisclosed by the record, plaintiff listed the farm or ranch property for sale with a real estate dealer for the sum of $10,000 which was $1,500 in excess of the purchase price paid by him.

If plaintiff was induced to purchase the property by reason of false and fraudulent representations made by defendant, upon the discovery thereof plaintiff had the option of bringing an action at law for damages resulting by reason of such false and fraudulent representations, or he could institute an action in rescission. Gordon Tiger Mining & Production Co. v. Brown, 56 Colo. 301, 138 P. 51; Tisdel v. Central Savings Bank & Trust Co., 90 Colo. 114, 6 P.2d 912; Gibralter Colorado Life Co. v. Brink, 113 Colo. 304, 157 P.2d 134. He elected rescission, and, having done so, is bound thereby. The court and attorneys, without questioning the sufficiency of the complaint, treated it as stating a cause of action in rescission, and we shall so consider it.

When one is induced to enter into a contract for the purchase of land by false and fraudulent representations, the contract is voidable and not void (24 Am.Jur., p. 36, § 210), and the power of avoidance is lost if the injured party, after acquiring knowledge of the false and fraudulent representations which induced him to enter into the purchase of the farm or ranch property, exercises dominion over the property and treats it as his own, for by so doing he affirms the purchase and waives any cause of action for rescission which he might otherwise have.

It is a general rule of law which is firmly established in this jurisdiction that,

'If a party, having the right to rescind a contract, does any act which amounts to an admission of the existence of the

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10 cases
  • Zelinger v. Uvalde Rock Asphalt Company
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • April 18, 1963
    ...have been admitted. Under Colorado law, a party to a contract should promptly exercise a right to terminate a contract. See Wark v. Bopp, 119 Colo. 12, 199 P.2d 892. This rule, however, is a rule of substantive law, not a rule of evidence. Whether the right to terminate has been exercised p......
  • Martinez v. Affordable Housing Network
    • United States
    • Colorado Court of Appeals
    • May 20, 2004
    ...with the continued vitality of the agreement. See, e.g., Gladden v. Guyer, 162 Colo. 451, 426 P.2d 953 (1967); Wark v. Bopp, 119 Colo. 12, 199 P.2d 892 (1948). In such an instance, a party cannot seek rescission and is limited to an action for damages arising out of the fraud. Tisdel v. Cen......
  • Gladden v. Guyer
    • United States
    • Colorado Supreme Court
    • May 1, 1967
    ...States Supreme Court cases and the Richardson v. Lowe case, supra. See Stoner v. Marshall, 145 Colo. 352, 358 P.2d 1021; Wark v. Bopp, 119 Colo. 12, 111 P.2d 892; Tisdel v. Central Sav. Bank & Trust Co., 90 Colo. 114, 6 P.2d 912; Lowe v. Howell, 64 Colo. 100, 170 P. 180; Halm v. Wright, 63 ......
  • Eitel v. Alford
    • United States
    • Colorado Supreme Court
    • April 13, 1953
    ...257; Halm v. Wright, 63 Colo. 419, 168 P. 36; Fabian v. Alphonzo E. Bell Corporation, 55 Cal.App.2d 413, 130 P.2d 779; Wark v. Bopp, 119 Colo. 12, 199 P.2d 892; Armijo v. Nuchols, 57 N.M. 30, 253 P.2d 317. These cases contain numerous citations of others equally The trial court found that n......
  • Request a trial to view additional results
3 books & journal articles
    • United States
    • Colorado Bar Association Colorado Real Property Law (CBA) Chapter 17 Land Contracts
    • Invalid date
    ...Gordon-Tiger Co., 97 P. 1042 (Colo. 1908); Halm v. Wright, 168 P. 36 (Colo. 1917); Lowe v. Howell, 170 P. 180 (Colo. 1918); Wark v. Bopp, 199 P.2d 892 (Colo. 1948).[287] Fountain Valley Land & Irrigation Co. v. Wagoner, 147 P. 333 (Colo. 1915).[288] Young v. Leech, 240 P. 692 (Colo. 1925).[......
    • United States
    • Colorado Bar Association Practitioner's Guide to Colorado Construction Law (CBA) Chapter 7 The Owner of the Construction Project
    • Invalid date
    ...See generally Alfred Brown Co. v. Johnson-Gibbons & Reed W. Paving-Kemper, 695 P.2d 746, 749 (Colo. App. 1984); but see Wark v. Bopp, 199 P.2d 892, 894 (Colo. 1948) (if party with a right to rescind does any act that amounts to admission of existence of the contract, that party may not be a......
  • Bona Fide Purchasers of Real Property: Fraud Is Not Civil Theft
    • United States
    • Colorado Bar Association Colorado Lawyer No. 32-12, December 2003
    • Invalid date
    ...of personal property induced by fraud. 7. Panhandle Pipe & Supply Co. v. Pressey & Son, 2243 P.2d 756, 760 (Colo. 1952). 8. Wark v. Bopp, 199 P.2d 892, 894 (Colo. 1948); Kerns Bank of Manitou, 242 P.2d 817 (Colo. 1952). See Restatement (Second) Contracts § 164. 9. Black's Law Dictionary, 7t......

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