19 Colo. 231 | Colo. | 1893
delivered the opinion of the court.
Numerous errors are assigned, but we deem it necessary to notice only those that are predicated upon the refusal of the court to give instruction numbered 4, asked by plaintiff, and the submission of the question to the jury whether the sale of the goods in controversy was fraudulent as to the creditors of Edwards, under the issues presented by the pleadings.
Counsel for appellee insists that that question was properly submitted; first, because in the action in replevin the plaintiff must recover, if at all, upon the strength of his own title, and under a general denial any state of facts may be shown to defeat such title; and, second, that if the correctness of this proposition be denied, that in their answer, as amended, fraud is sufficiently averred.
While the first proposition finds support in some of the adjudged cases, among them the case of Sopris v. Truax, 1 Colo. 89, recent decisions of this court, under the present
As was stated in the case of Tucker v. Parks, “ Fraud must be specially pleaded in an answer, as well as in a complaint. There were no facts stated in the answer apprising the plaintiff that his title would be assailed in this manner.”
This language is particularly pertinent to the case under consideration; that action being also an action in replevin, and the answer therein relied on as being sufficient to admit proof of fraud, being almost identical with the original answer in this case.
The case of Benesch v. Waggner, 12 Colo. 534, is cited in support of appellee’s contention, but since that case has been so clearly distinguished from the case of Tucker v. Parks, supra, by Judge Elliott in his opinion in the case of De Votie v. McGrerr, supra, its want of analogy to the case under consideration is readily discernible. The general and well established rule is that fraud is not to be presumed, and to be available in other forms of action must be specially pleaded. We can perceive no satisfactory reason why in an action in replevin the same rule should not apply.
It was essential, therefore, that the facts relied on by defendant as constituting the sale by Edwards to plaintiff fraudulent, should have been properly pleaded.
Without expressing any opinion as to whether or not the amendment to the answer was properly allowed, we pass to the consideration of the sufficiency of the answer as amended to admit evidence tending to show complicity on the part of plaintiff with Edwards in his alleged fraudulent design. The allegation that the transfer of the property was without con
Therefore, notwithstanding the averment of a fraudulent design on the part of Edwards, there being no allegation of knowledge or notice on the part of plaintiff of such design, or any complicity therewith or participation therein on his part, the answer is clearly insufficient to admit evidence of such knowledge or conduct; and the only issue presented by the pleadings upon which evidence was admissible, and to which the finding of the jury should have been confined, was whether the plaintiff was the actual owner of the property in controversy.
The instruction asked by plaintiff correctly embodied the law applicable to this issue, and the court erred in refusing to give it; and in submitting the case to the jury upon the theory that the question of fraud was involved.
Since the case must be remanded for a new trial we think it due to the respective parties to notice the error based upon the admission in evidence of the letter written by Edwards to G. M. Henderson & Company shortly preceding the sale to Seeleman. That it was inadmissible under the pleadings as they stood follows from what we have already stated. Would it be admissible under proper pleadings?
While there is a seeming conflict in the authorities on this question, the rule as announced in Grimes v. Hill, 15 Colo. 359, recognizes the right of a party attempting to impeach the validity of a sale on the ground of fraud to introduce in evidence declarations of the vendor, made before the sale, that tend to reveal the character of the transaction. Under this rule we think the letter in question would be admissible in evidence, under issues properly framed.
It is unnecessary to notice the further errors assigned, as they may be avoided on another trial. For the foregoing reasons the judgment of the court below must be reversed.
Reversed.