Farris v. Strong

1. Erato—False Rephesejítations. A false representation as to a matter of intention, not amounting to a matter of fact, although, it may have influenced a party to a transaction, is not a fraud in law. 2. Same. Ordinarily, a false representation or concealment, to be fraudulent must have reference to a present or past state of things,—otherwise it will not be a ground for cancellation.

Error to the District Court of El Paso County. This is an action brought by Samuel N. Farris, plaintiff in error, against F. H. Strong and Stewart McDougal, defendants in error, to procure a rescission of a certain contract and cancellation of a deed executed in pursuance thereof, upon the ground of fraud. The complaint, in substance, avers: That in the early part of October, 1894, plaintiff had an option to purchase the City Yiew mine, located in Cripple Creek Mining district, El Paso county, Colorado, and was then negotiating, and in effect had negotiated, a sale of the same to one Baxter, in such a way that he could retain for himself an undivided one fourth interest in the property as a profit; that the defendant Strong, learning of the pending negotiations, falsely represented to plaintiff that he could materially assist in said negotiations, and would furnish money to help carry out the deal, if necessary, to the amount of $1,000 ; and in the event the deal was made, he would loan plaintiff $500 for six months; that plaintiff, believing said representations to be true, was thereby induced to sign the following contract: “Cripple Creek, Colo., 12th Oct., 1894. “ This agreement made and entered into between S. N. Farris of the first part and F. H. Strong, both of Cripple Creek, witnesseth that S. H. Farris and F. H. Strong have entered into'a partnership deal to sell the City View mine on Gold Hill, each being an equal partner in the division of the profits —S. H. Farris furnishes the option on the mine which he got from Mr. Harlow & Hallack, and F. H. Strong furnishes the method of selling, and will also furnish money to help carry out the deal, one thousand dollars if necessary—which is to come back as the commission and the intention is to clear one quarter of the mine, that is, it is agreed we will sell only three quarters of the mine for seven thousand dollars, and we will retain one fourth interest in the mine, that is one eighth shall be for or to S. H. Farris for profit, and one eighth to or for F. H. Strong, for his profit in the deal—the present intention is to sell to O. H. P. Baxter of Pueblo and his friends, or to any other party or parties. How if the deal is made as now laid out, F. H. Strong’ agrees to lend S. H. Farris on his one eighth of the City View mine five hundred dollars for six months at eight per cent per annum, and as fast as his share of the ore makes money it shall be applied to pay back this five hundred dollars. “ Signed: S. H. Farris. “F. H. Strong,” Avers that the defendant Strong furnished no method to help carry out the deal, furnished no money therefor, rendered no assistance of any kind to plaintiff, but, nevertheless, at the completion of said sale, used said written agreement in such a manner as to obtain a conveyance from the owners of said City Yiew lode of an undivided seven sixty-fourths and thereafter gave plaintiff a check for $500, dated October 19, 1894, upon the Bi-Metallic Bank of Cripple Creek, but that no money was ever deposited in said bank to meet said check; that the payment of same has ever since been refused by said bank, and by said defendant Strong. Avers that Strong has conveyed the interest in the property to his codefendant Stewart McDougal; that said conveyance was made without consideration, and with full knowledge on the part of McDougal of the facts aforesaid. Defendants answered, denying the allegations of the complaint, except the execution of the contract. The cause was tried to the court. A motion for judgment on the pleadings in favor of plaintiff was denied; an objection to the introduction of testimony under the complaint was sustained, and the action dismissed upon the ground that the complaint failed to state a cause of action. To this judgment the plaintiff prosecutes this writ of error.