18 Colo. App. 363 | Colo. Ct. App. | 1903
The judgment helow was for the defendants, and the plaintiff has brought the case here by writ of error.
The complaint alleged that on the 6th day of May, 1899, the defendant, Noah R. Pratt, represented to the plaintiff that a friend of his whom the plaintiff afterwards found to be his son, Arthur A. Pratt, had a valuable piece of land situate in Bijou Basin, in Elbert county, which he held in virtue of a valid, homestead filing; that the land was improved with a dwelling house and some fencing; that water could be found on the land at a depth not exceeding thirty feet from the surface; that all kinds of crops could be raised on the land without irrigation; that he could induce his friend to relinquish his filing on the land for $250; that the relinquishment was worth that sum; that the plaintiff could then make a filing of his own in the United States land office in Denver, and become the owner of the land; that, believing the representations, to be true, and not knowing to the contrary, he was induced by the defendants, Noah E. and Arthur A. Pratt, to deposit with the defendant, W. H. Davis, $250, Arthur A. Pratt at the same time depositing with Davis a pretended relinquishment of his homestead filing, the condition of the" deposits being that Davis should hold "them until certain papers should arrive from the east, upon the arrival of which he should turn the relinquishment over to the plaintiff, and the money to.the defendant, Arthur A. Pratt. It was further averred that the representations made by NoahR. and Arthur A. Pratt were knowingly and
The defendant,.Davis, answered that he held the $250, mentioned in the complaint as custodian only; that he had no interest in the money or the controversy ; and that he was ready and willing t‘o pay the money over to the person or persons to whom the court might award it.
The answer of the defendants Pratt admitted that certain of the representations alleged to have been made by the defendant, Noah R., were made by him; admitted the deposit with Davis of the $250 and the relinquishment, upon the conditions stated in the
The replication, except as to the visit to the land and the presentation of the papers for entry by the plaintiff to the United States land office, was a denial.
The plaintiff testified that the defendant, Noah R., told him that the land was in Bijou Basin; that he went with one of the Pratts to the land and examined it, giving a description of its surface appearance ; that he went through the building styled a. “dug-out,” which he described as being constructed of logs and covered with a roof; that he asked Pratt how deep he would have to go to find water, and was answered, about thirty feet; that Pratt told him he could raise all kinds of crops on the land, sped
Aside from himself, there was but one witness for the plaintiff. This witness testified that he had lived for four years about two and-a quarter miles from'the land in question'; that a crop could not be raised in his neighborhood every year, at least not on his land; that he raised two crops while he was there; and that the wells at different places around him were from thirty to one hundred and fifty feet deep.
The defendants Pratt introduced a number of witnesses. It was proved by them that Arthur A. had constructed- the dug-out, and placed a certain ¿mount of fencing on the land; that while wells had been sunk on adjacent land, none had been sunk on that land, and it had not been cultivated; that abundant crops of sorghum, corn, oats, wheat, potatoes and alfalfa grew in the immediate neighborhood without irrigation; that water had been obtained on adjoining land at a depth varying from twenty-one to forty feet; and that it could probably be found on the land in question within thirty feet.
A jury had been empanelled to try the case, but,
The principal point made for the plaintiff is that the contract was verbal and executory; that it could therefore be rescinded by either party at his pleasure and as a matter of right; and that the plaintiff did rescind it. It is unnecessary to discuss the effect of the escrow, or inquire into the right or power of either party to revoke it without the consent of the other, for the complaint was not constructed, nor the case tried, upon the theory of the existence of such right or power. The complaint charged that the purchase by the plaintiff was induced by false and fraudulent representations made by the Pratts, and a finding of wilful deceit was asked, which, if made, would have subjected their persons to execution upon the judgment. The- sole ground upon which the plaintiff based his right to a return of his money, was the deceit by means of which he alleged himself to have been inveigled into the transaction. What the representations were, how they accorded with the facts, and whether the plaintiff relied upon them, were the only questions presented by the pleadings; and if upon those questions the evidence which was produced left no room for a difference- of opinion, there was nothing for the jury to consider, and the court did not err in withdrawing the case from them.
Now we are unable to discover any particular in which the charges, or any of them, against the defendants made by the complaint, were sustained by the evidence. Whether the locality in which the land lay was called Bijou Basin or Bijou Bottom, is immaterial. What difference in meaning there may be between the terms Bijou Basin and Bijou Bottom, we have not been advised; but the plaintiff saw and in
Affirmed.