Wark v. Bopp, 15944.
| Decision Date | 01 November 1948 |
| Docket Number | 15944. |
| Citation | 119 Colo. 12,199 P.2d 892 |
| Parties | WARK v. BOPP. |
| Court | Colorado 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.
Affirmed.
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.
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.
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