James v. Frank

Mr. Chief Justice Teller delivered the opinion of the court. Defendant in error brought suit against the plaintiff in error for damages resulting to the plaintiff from his purchase from defendant of a moving picture business at Brighton, Colorado, said purchase being alleged to have been induced by fraudulent representations made by defendant in the action. The action was for $3,000.00 paid on account of the purchase price. Verdict and judgment were for $2,000.00. Plaintiff in error appears to consider this an action to rescind, but the complaint shows that it was an action for damages, both actual and exemplary, and charged fraud, malice, etc., upon which a body judgment was demanded. There are numerous assignments of error concerning the giving and the refusing of instructions, but as none of the instructions given or requested, are contained in the abstract, we cannot consider them. The principal points argued are that the evidence does not support the verdict, in that the evidence shows that the minds of the parties had met before the alleged misrepresentations upon which the plaintiff relied were made, if made at all. Counsel for plaintiff in error state that reliance is had upon the proposition that the testimony of the plaintiff in the cause is improbable and unworthy of belief. There was evidence which, if believed by the jury, would fully justify them in finding that the defendant made false and fraudulent statements to the plaintiff during the negotiations for the purchase of the business; that these statements were made before the final conclusion of the contract of purchase ; that they were relied upon by the plaintiff, and were the inducing cause of his making the purchase. It is further urged that the court erred in refusing a *286 change of venue. The abstract states that such a motion was filed, with an affidavit annexed in support thereof, to which the plaintiff filed a counter affidavit. As these affidavits are not before us, we cannot consider the error assigned. It should be observed further that so far as the abstract shows, no exception was taken to the order refusing the change. Finding no error in the record, the judgment is affirmed. Mr. Justice Campbell and Mr. Justice Sheafor concur.