55 Colo. 419 | Colo. | 1913
delivered the opinion of the court:
1. An action was commenced by defendant in error Miller, plaintiff below, to recover from Kilpatrick, damages caused by his alleged false representations regarding an irrigation project on Skull Creek, in what is now Moffa.t County, near the Utah line.
The complaint alleges that in May, 1909, defendant Kilpatrick represented to the plaintiff, that there was a project involving the irrigation of arable lands in Routt county which, when developed, would water not less than 10,000 acres lying under a proposed reservoir on Skull Creek; that said reservoir with its water shed and a living stream of five cubic feet of water per second, tributary thereto, would irrigate said amount of land; that if plaintiff would advance him $500.00, defendant would make the necessary filing on the reservoir site and water rights with the proper authorities; that acting and relying upon these representations of the defendant, he made and entered into a contract with him, wherein, in consideration of $500.00 in cash, defendant agreed to make a survey, and file on said reservoir site, to transfer a half interest therein to the plaintiff, and also to take plaintiff to the proposed site for an inspection of the same; that the amount of arable and tillable land thereunder was not 10,000 acres, and was not to exceed 2,000 acres which could be cultivated, and there were no ade
2. This is in the nature of an action for damages on account of fraud and deceit based upon alleged false representations made by the defendant, which induced plaintiff to enter into a contract with and pay to defendant $500. A complaint in a suit of this kind should plead in positive and precise language, the facts upon which the action is based. Allegations by way of recital, generalizations, legal conclusions and conclusions of the pleader, are not sufficient, and will not be considered in passing upon a general demurrer, where it is only the facts well pleaded that are taken as true. Tested by this rule, a complaint should allege the facts constituting the false representations made by the defendant; that he knew at the time he made them that, they were untrue or gave positive assurance that the representations were
3. The first paragraph regarding the representations alleges that the defendant represented certain things regarding a proposed reservoir or reservoir site, its water shed and the irrigable lands thereunder on Skull Creek in what is now Moffat county. There is no allegation in this paragraph that he falsely represented these things. The next allegation is, that acting and relying upon these representations, plaintiff entered into the contract. The succeeding paragraph alleges that the irrigable lands under the reservoir site which could be cultivated, was not 10,000 acres, and did not exceed 2,000 acres, and the water shed and water supply was not adequate, as represented by the defendant. This is nothing more than a statement that the representations made by the defendant were incorrect, or that he was mistaken. There is no allegation anywhere that defendant falsely made these representations, or that they were false, and that he knew at the time they were made, that they were false, or that they were false, and that he stated at the time that, he knew they were true of his own personal knowledge; or that they were falsely made with the intention and purpose of inducing the plaintiff to act upon them. The next paragraph recites that plaintiff would not have entered into the contract and advanced the money except in reliance upon the representations of the defendant. This is a mere recital and not an allegation that he relied upon the representations made at the time by the defendant. The next paragraph
4. The case will be reversed because the complaint does not allege the defendant knew at the time he made the representations that they were false, and does not allege that they were made for the purpose of inducing plaintiff to enter into the contract and advance the money. These allegations are jurisdictional in this kind of an action, and a complaint which omits them, fails to state a cause of action.—Wheeler v. Dunn, 13 Colo. 436, 22 Pac. 827; Lahay v. City Bank, 15 Colo. 339, 25 Pac. 704, 22 Am. St. Rep. 407; Connell v. El Paso Company, 33 Colo. 30, 78 Pac. 677; Colorado Springs Co. v. Wight, 44 Colo. 179, 96 Pac. 820, 16 Ann. Cas. 644; Mayo v. Wahlgreen, 9 Colo. App. 506, 50 Pac. 40.
The ground in a general demurrer to a complaint, that it fails to state a cause of action, is not waived by answering after the demurrer has been improperly overruled.— Thalheimer v. Crow, 13 Colo. 397, 22 Pac. 779; Horner v. Bramwell, 23 Colo. 238, 47 Pac. 462.
Reversed and remanded-.
Chief Justice Musses and Mr. Justice Scott concur.