4 Colo. App. 14 | Colo. Ct. App. | 1893
delivered the opinion of the court.
This case is peculiar in one aspect of it, showing the extent to which results are influenced by the place of trial.
“The rule in these cases is, that a point once adjudicated by a court of competent jurisdiction may be relied upon as an estoppel in any subsequent suit in the same or any other court at law or chancery where either party or the privies of either party allege anything inconsistent with it.” Aurora City v. West, 7 Wal. 82.
The contract was made by John E. Godding, was by him assigned to T. F. Godding, as alleged with the knowledge and consent of appellee ; it was a uon-negotiable instrument, the assignee took it subject to all the existing infirmities, including the alleged fraud in its procurement, which if established would destroy it. The privity required by law existed by the relation the two Goddings bore to each other and the subject-matter of the contract. It is claimed in argument by appellee that the judgment in Weld county could not operate as a bar because the parties were not identical. It is not necessary that the parties should be identical according to the rule laid down in Aurora City v. West, supra, where it is
The right of T. F. Godding to recover was dependent upon the right of John E. to recover, had there been no assignment. In order for John E. to recover, with the issues of fraud and misrepresentation, he must overcome the allegations of the answer. So must T. F. Godding. The question was not whether John E. was a party but whether the same questions had been adjudicated in a controversy pertaining to the same transaction.
The identity of the issues to be tried being established by an examination of the respective records, the answer should have been allowed to remain and a trial had, as parol proof was clearly admissible to establish the proceedings had upon the former trial and the part taken by John E. Leave having been obtained of the court and entered of record and the answer filed, such leave being discretionary with the court, another judge could not order it stricken from the files at a subsequent date because not filed in apt time. Nor was the fact that the case had been set for trial prior to the leave and filing of the answer of any importance, as it could have been vacated at any time if necessary. The answer was sufficient in form and substance to raise thp question of a former adjudication. The policy of the law is clearly against a second adjudication of the same questions, and the court erred in striking the answer from the files.
It is very doubtful whether under the authorities a cause of action is shown by the complaint. It was found that no cause of action accrued in regard to the quality of the hay. The only remaining cause of action was the alleged misrepresentation in regard to the water supply. It would appear that the agents of appellee, when placing the cattle there, found the supply adequate and as represented; consequently, if appellant was to be held, it must have been upon the alie
Mere expressions of opinion are not false representations. A misstatement, to be actionable, must relate to existing facts peculiarly within the knowledge of the party: Stimson v. Helps, 9 Colo. 33; Adams v. Schiffer, 11 Colo. 29; Cooley on Torts, 474-486; 1 Hil. on Torts, chap. 1, § 4; Sawyer v. Prickett, 19 Wal. 146; Cooper v. Schlessing, 111 U. S. 148; 1 Perry on Trusts, § 173.
The following instruction was given by the court and an exception taken:
“If the jury find the issues for the plaintiff, as explained above, then the measure of damages is the reasonable market value of the cattle lost, as shown by the evidence, if any were lost by reason of the insufficiency or unwholesomeness of the water aforesaid, and also the difference in value, if any, between the herd as wintered, and as recovered and driven away by the plaintiff, and the value thereof, if the Same had been properly supplied with good water in sufficient quantities.”
The measure or rule of damages is incorrect, the instruction should not have been given. Neither appellant nor his assignee were insurers of the lives or health of the herd.
The agents of appellee, before placing the cattle upon the ranch, visited it, measured and accepted the hay, knew the character and condition of the water supply, and with knowledge of all of these facts placed the herd there some two months later in charge of its own agents and employees. There was an abundance of running pure water accessible within less than half a mile, appellee could riot subject its cattle to
No rule of damages making the contractor an insurer of the herd and charging him with the value of all dead cattle can be correct, when the stock at no time was under his control or subject to his directions.
The judgment must be reversed and cause remanded for a new trial.
Reversed.