83 Colo. 374 | Colo. | 1928
delivered the opinion of the court.
Scott, defendant in error, was plaintiff, and Bohe, plaintiff in error, was defendant, in the trial court. We hereinafter refer to them by name.
Scott brought replevin to recover a picture and the judgment was against him. He came here on error and a reversal resulted. Scott v. Bohe, 81 Colo. 454, 256 Pac. 315. That opinion should be read in connection with this. As therein suggested retrial was had, without additional evidence, before the judge who first heard the cause. This time judgment was for Scott. To review it Bohe now brings error and asks that the writ be made a supersedeas.
The trial court found inter alia that Bohe represented, and he and Scott both believed, that the picture was an old worthless canvas, but that at the time Bohe procured the bill of sale he knew otherwise and that it was of very considerable value, which fact he concealed from Scott; and that as a matter of law no tender was necessary prior to suit because tender would have been unavailing. Each of these findings is assigned as error and we need consider none other.
As we do not review findings made on conflicting evidence we must search the record for that testimony most favorable to the judgment. We thus find that on the evening of February 9, Bohe told Scott that this picture was just an old copy, that the frame was worth as much as the picture, that to clean and repair it would cost more than could be obtained for it, that the picture was taken by Bohe without any agreement as to its. price, that it was merely lumped in by Bohe on final, settlement, that
The trial court’s findings must be interpreted in the light of the evidence. So interpreted they are amply supported. There was neither inadequacy of price nor misunderstanding of value if the thing itself had been what Bohe represented and what Scott believed. The situation is exactly what it would have been had these men been dealing with a substance which Bohe believed to be, and which was in fact, a diamond of fabulous value, but which Bohe represented, and Scott believed, to be a piece of glass. When properly drawn in question men have never been held to such contracts.
In our former opinion we held that demand before suit was unnecessary in this case because it “would admittedly have been unavailing and would probably' have resulted in defendant’s placing the property beyond the reach of the court.” We see no reason to alter that conclusion. It is now argued nevertheless that Scott should have tendered back the purchase price. What we said of demand would appear in reason to be equally true here of tender. However, if we accept Scott’s evidence, as we must presume the trial court did, he would not know in what amount, if any, to make such tender because no specific price was ever fixed upon the picture. Nevertheless on the trial he did tender into court an amount equal to the total of Bohe’s bill, less the cash payment, and that tender has been kept good. Again, it appears that Bohe took the furniture at' his own price, agreed to
“The right, however, to insist upon tender is not an arbitrary right; on the contrary, it will yield to circumstances which show that it would either be unjust or an idle ceremony to require it.” The Law of Fraud, Bigelow, p. 424; Stimson v. Helps, 9 Colo. 33, 35, 10 Pac. 290. Moreover, in this case tender was waived because it was an incident only to the validity of demand. Scott had a right to demand the return of the picture, but to give any validity to that demand must tender back the purchase money, if any. There could be no necessity for tender save as an incident to the demand. When Bohe admitted that he would never have surrendered the picture he admitted the futility of tender and thus waived it. The purpose of demand and tender is to place the parties in statu quo and in the instant case that was clearly impossible because of Bohe’s persistence in the wrong he had committed.
Assuming that Bohe’s statements of February 9, concerning the worthlessness of this picture were made in perfect good faith, it is evident that on March 4 when the price, if any, was fixed and the deal consummated he well knew the contrary and knew also that Scott was then acting on said representations.
“One who after making an innocent misrepresentation discovers the truth, yet thereafter silently allows another to act on the misrepresentation is guilty of fraud. ‘In effect he is continuing the representation with knowledge of its falsity.’ ” Williston on Contracts, Yol. 3, sec. 1497, p. 2664.
It therefore appears that the trial court’s findings of fact are supported by the evidence, that no demand was necessary, and that tender into court was all that was required in the instant case. The judgment is accordingly affirmed.