75 Colo. 170 | Colo. | 1924
delivered the opinion of the court.
This is an action for damages for deceit. There was a verdict and judgment for defendants. The plaintiff brings the cause here for review.
The complaint alleges, in substance, that in November, 1917, the defendant Seelinger, for the purpose of inducing plaintiff to make a loan to one O’Farrell, falsely represented to plaintiff that O’Farrell was a very wealthy man. There are other allegations wherein Seelinger and O’Farrell are charged with having entered into a conspiracy to defraud plaintiff.
The court instructed the jury that unless it found that the defendants O’Farrell and Seelinger were in a combination and acting with a unity of action for the purpose of defrauding plaintiff, the defendant Seelinger would not be liable. The giving of this instruction is assigned as error.
Although a conspiracy to defraud is alleged, it was not necessary to prove it. Conspiracy is not a part of the cause of action for deceit. 27 C. J. 43, and cases cited. The charge of conspiracy, if unsupported by the evidence, can be considered as surplusage. 12 C. J. 584. It was error to give the instruction.
Another instruction complained of is one to the effect that plaintiff cannot recover unless the acts and representations of defendant “were of a nature calculated to
The judgment is reversed, and the cause remanded for new trial.
Mr. Chief Justice Teller and Mr. Justice Burke concur.
