290 P. 281 | Colo. | 1930
THE object of this action by Troutman against Stiles is to recover the sum of $9,600 from the latter as damages *598 which resulted to the plaintiff, as he says, by reason of certain false and fraudulent representations by the defendant as to the character and value of 320 acres of farm lands in Phillips county, Colorado, which Stiles owned and which he exchanged for a stock of merchandise of plaintiff Troutman in New Palisade, Nebraska. The trial court sustained the defendant's motion for an order on the plaintiff to make his complaint more specific by setting forth, inter alia, whether or not the exchange contract was in writing, and, if it was, that such written contract be pleaded in detail. Plaintiff complied with the court's order so directing, and in his amended complaint set forth in haec verba the written contract of exchange, to which the defendant's demurrer for insufficient facts was sustained, and, as the plaintiff elected to stand by his amended complaint, the action was dismissed, and plaintiff is here with his writ of error.
We think the judgment must be upheld. The amended complaint alleges that at the time plaintiff entered into this exchange contract he was unacquainted and unfamiliar with the market value of Colorado lands and particularly lands near Holyoke, Colorado. The complaint further says that the defendant, with intent to cheat and defraud the plaintiff and to induce the latter to enter into the written contract of exchange, represented to plaintiff that the same was good alfalfa land and suitable for the successful cultivation of all other agricultural crops, and that it was of the reasonable market value of $50 per acre; whereas, in truth and in fact, the land was not good alfalfa land and its reasonable market value did not exceed $25 per acre. Plaintiff further alleges that he relied upon the defendant's statements as aforesaid, not having any opportunity to learn that the statements were untrue until after the contract was signed by him and the land thereafter actually conveyed. And as further evidence of fraudulent conduct on the part of the defendant, the plaintiff alleges that the defendant caused his nephew and another man, before the contract was executed, to *599 represent to the plaintiff that they were well acquainted with its value, which they said was at least $50 per acre. While negotiations were pending for the exchange, the defendant caused certain friends of his own selection to take the plaintiff to this land and show it to him; that the plaintiff and the defendant's representatives went upon the land in question to inspect the same and plaintiff was shown a portion of the land which was good level land and it was represented to the plaintiff that the entire section in which this tract was situate was of the same kind and character, when in truth and in fact there were three large lagoons on the land covering approximately 30 acres, which lagoons were situate on the opposite side of the tract from where the plaintiff was taken to examine it, and that plaintiff made no further examination and relied upon such statements as to its character as were made to him by these representatives of the defendant. Such other allegations as are usual in suits of this character to bring the case within the requirements of the law are set forth in the complaint. Some time thereafter the written contract for the exchange was entered into by the parties. It contains the following sentence: "We each have inspected each other's property and are dealing solely on our own judgment and not upon any representations that have been made to us, and have carefully read this contract before signing."
It was upon the language above quoted that the trial court relied in sustaining the defendant's demurrer to the amended complaint. Counsel for the plaintiff on this review say that the trial court's decision was based largely upon Emerson-Brantingham Co. v. Wood,
[1] This record shows that after the alleged oral representations of the defendant and his representatives were made to the plaintiff as to the value and character of the lands, the plaintiff himself went upon this land and made an investigation of his own. He saw a portion of the tract of land in question which seemed to him at the time to be good agricultural lands. He thus had an opportunity to inspect this entire tract, if he saw fit to do so, and if he neglected, as he did, this opportunity to go over the entire tract, it was his own fault that he did not ascertain the condition of the land in question and determine for himself its character and value. The written contract was not signed by the plaintiff for six or seven days after he inspected this land and had an opportunity to judge of its character. In 26 C. J., pp. 1149, 1150, § 68, it is said: "Where the parties deal upon equal terms, one who has failed to avail himself of means of knowledge readily within his reach cannot as a rule complain of the other party's representations." Plaintiff certainly had an opportunity to inspect and for himself determine the character of this entire tract of land, but he neglected, according to his own admission, to go over the entire tract with that object in view. The plaintiff took this property in exchange with his eyes open and without necessarily relying on the statement of the defendant as to its value or character. Fraser v. Walker,
We quote from Mr. Justice Scott's opinion in the Emerson-Brantingham case, supra, p. 135, the following, which we think applicable to the case now before us: "It is plain that the plaintiff had full opportunity to learn from his own observation and examination as to the truth or falsity of the alleged misrepresentations, before he paid for and gave his receipt for the machine. The law in such case is well settled and no longer admits of argument."
In Pestal v. O'Donnell,
[2] The latter part of this statement is peculiarly pertinent here. The plaintiff evidently did not choose to rely upon the alleged false representations of the defendant as to the character and value of this tract of land, which was the subject of negotiations between them in the exchange of properties. He did not choose to remain *603 in Nebraska and take the word of the defendant, but came to Colorado and actually was taken to the land in question, where he had full opportunity to examine it as fully as he desired. He seemed to be satisfied with the result of his own investigation and examination and there is nothing in the record which shows that he was prevented by the defendant or the defendant's agents from making a thorough investigation for himself. It necessarily follows that the judgment should be, and it is, affirmed.
MR. CHIEF JUSTICE WHITFORD, MR. JUSTICE ADAMS and MR. JUSTICE ALTER concur.