48 Colo. 354 | Colo. | 1910
delivered tlie opinion of the court:
This action was brought by the appellee before a justice of the peace; judgment was entered in her favor. The defendants appealed to the county court, where a trial to the court resulted in a judgment in her favor in the sum of $270.00 and costs, from which the defendants appeal.
The principal assignments of error are, that the findings of the court and judgment were contrary to the law and the evidence. There are no written pleadings and the facts must be obtained from the testimony, from which it appears, that through the representations of Miss Duncan (who was the secretary) followed by those of J. C. Feitslians (who was the president of the appellant, the United States Home Company), appellee paid to appellants money for certain certificates of stock in said company; It
It is earnestly urged by counsel for appellants that the court erred: first, in denying- defendants’ motion for a nonsuit, also thereafter in its findings of facts and the rendition of judgment thereon, for the reason that it had not been shown that there had been any deceit or fraud practiced upon the plaintiff by way of false representations as to present existing or past facts; second, that the representations the plaintiff relied upon were made, if at all, to matters in futuro; third, that the representations, if any, made by Mr. Feitshans and Miss 'Duncan were not material representations and were not relied upon by the plaintiff; fourth, that it had not been shown that plaintiff had suffered any injury by their representations, and concerning which it is claimed that the cases of Farris v. Strong, 24 Colo. 107, and Admns v. Schiffer, 11 Colo. 15, are decisive on the propositions that false representations must be made with reference to present existing, or past facts before fraud can be predicated of them.
We do not think the judgment is ih conflict with the principles announced in the foregoing authorities,
The evidence further shows, that the plaintiff, although continuing to make her payments upon these contracts as therein provided for, did not get her loan within the six months’ period, or at all; that there was no arrangement then in existence nor were sufficient certificates then sold, if all payments were continued thereon, whereby she ccpld have secured her loan within the six months, as represented by the appellants.
The amount of the judgment was $270.00. It appears the appellee had paid to the appellants the sum of $180.00 upon the certificates, together with the sum of $42.50 bonus; to add the legal rate of interest upon these respective sums from the date of their payment to the date of the rendition of judgment, would, with the payments, equal the amount of the judgment, so that in case the action was for moneys had and received, together with the legal interest thereon, or for a rescission of the contract, the amount is'within the rules. In case it is an action founded on tort, as is claimed by the appellants, their contention that the appellee secured her loan elsewhere, and thereby no damages were shown to exist, is not tenable. While the evidence upon this fact is meager, it would follow as a matter of course, that upon a breach of contract for the furnishing of a loan,
The judgment is affirmed. ■ Affirmed.
Chief Justice Steele and Mr. Justice Gabbert concur.