63 Colo. 427 | Colo. | 1917
delivered the opinion of the court:
The plaintiff in error instituted this action. The complaint contained two counts. The first was to recover $3,000.00 damages, alleged to have been suffered through the fraud and deceit of the defendant in securing the exe
The defendant denied all fraud and deception; admitted the receipt of the deeds, and possession of the water rights; alleged that the lands had already been incumbered to him in the sum of $15,000.00 to secure moneys advanced to the plaintiff and members of her family in its development, which notes and mortgages he had transferred to others, who were demanding payment, etc., which the plaintiff and the other members of her family, who were interested in it, were unable to do. For these reasons he alleges that it was agreed between them that plaintiff’s equity in the land and the water rights was to be traded to other parties, who would and did assume the payment of this incumbrance, and that plaintiff was to be paid for her equity, and was paid, with her knowledge and consent, with $50.00 in checks and the balance in notes of the defendant, which she thus accepted, one in the sum of $1,500.00, the other for $4,950.00; that thereafter she placed these notes in the hands of an attorney for collection, and that the defendant paid the $1,500.00 note in full to said attorney, and the further sum of $8,500.00 to apply on the larger note, and with her consent gave her a new note for the sum of $1,492.00 in payment for the balance due on the larger note, which she received as such, and cancelled and surrendered to defendant the notes; that the agreement between them concerning the entire transaction was in writ
At the close of plaintiff’s testimony, a non-suit was granted. In passing upon the motion the court, among other things, in substance, said that while the plaintiff’s evidence showed prima facie' fraud had been committed, that when plaintiff discovered this alleged fraud (which pertained to the water rights, and the fact that she was to get cash instead of the notes) it was her duty to have done one of two things, viz, either repudiate the contract, and return the notes to defendant, or offer to do so, and sue him in tort for the wrong committed, or, to ratify the contract and collect the notes; that she could not do both; that her testimony showed that upon discovering the fraud, she elected to ratify the contract, and collect the notes; that after knowing all of the facts, she could not thereafter bring this kind of an action; that she waived her right to do that by collecting $5,000.00 on the notes, and taking a new note in the sum of $1,492.00 for the balance that was due upon the first notes, and per the terms of the written contract between them covering' the entire transaction. This ruling is the error complained of.
A careful reading of the entire record convinces us of the correctness of this ruling. The pleadings admit the existence of the prior notes and mortgages upon the land, as alleged by the defendant. The plaintiff’s testimony discloses that the defendant (whom she had known for a long time) came to her home about January 1, 1911, and' told her that he had a sale for the land, and wanted her to sign the papers; that she declined to do so then or thereafter, until she had talked with her husband, who was up, in the mountains; that she talked with her husband that night over the phone; that defendant returned to her home the next day with a notary, when she signed the contract between them calling for the disposition of the land and water rights, and payment to her of $50.00 in cash and the notes, as set forth in the defendant’s answer; that she, at the same time, executed the deeds, and delivered them with the contract to the defendant, who gave to
The record fails to disclose when this suit was brought. The trial was commenced February 16, 1915. The testimony of plaintiff’s counsel, who brought this suit and tried it, was to the effect that he was employed by her about a year before the trial; that he wrote the defendant a letter, after which defendant came to see him about the last $1,492.00 note; that defendant stated if he was sued he would be forced into bankruptcy, etc. The attorney further testified that if defendant had been good he might have sued him on the note, probably would; that he made this statement to show why he brought the suit, as he did, in tort. This testimony discloses that this suit was not brought until at least after February, 1914, which was over three years after the original transaction. Each of the original notes contained the following. “This note is subject to the covenants of a written agreement of even date between the maker and Dora Widman.” To a certain extent this made them a part of the contract. The consideration involved in the contract on the part of the defendant was not alone the payment of $50.00, and the giving of the two notes, it provides that he should assume and pay, or cause to be paid, certain outstanding notes of Paul H. Widman (plaintiff’s husband), Allie L. Widman (plaintiff’s son), and plaintiff, also that the defendant would assume the $15,000.00 incumbrance on the land, and pay or cause it to be paid, releasing her from the payment of both principal and interest, etc. It contains other statements showing that it was a settlement of certain trans-'
Ponder v. Altura Farms Co., 57 Colo. 519, 143 Pac. 570; Cole v. Smith, 26 Colo. 506, 58 Pac. 1086; Schagun v. Scott Mfg. Co., 162 Fed. 209, 89 C. C. A. 189; Negley v. Lindsay, 67 Pa. St. 217, 5 Am. Rep. 427 ; Schmidt v. Mesmer, 116 Calif. 267, 48 Pac. 54; Burne v. Lee, 156 Calif. 221, 104 Pac. 438; Kingman & Co. v. Stoddard, 85 Fed. 740, 29 C. C. A. 413; McLean v. Clapp, 141 U. S. 429; 35 L. Ed. 804, 12 Sup. Ct. 29; Campbell v. Newton et al., 152 Pac. (Okl.) 841.
The claim that the question of waiver or election is one of fact and for that reason should have been submitted to the jury, is not applicable. The testimony was that offered upon behalf of the plaintiff, the greater part of which was given by her. It was undisputed and of such a character that only one conclusion could be drawn from it. In such case, it was the duty of the court to act accordingly; there was nothing for the jury to determine; such has been the uniform holding in this jurisdiction:
Stearns v. Hazen, 45 Colo. 67, 101 Pac. 339; Ponder v. Altura Farms Co., 57 Colo. 519, 143 Pac. 570; Behrens v. K. P. Ry. Co., 5 Colo. 400; Muir v. Pratt, 18 Colo. App. 363, 71 Pac. 896; Brown v. Potter, 13 Colo. App. 512, 58 Pac. 785.
The judgment is affirmed.
Affirmed.
Decision en banc.