Opinion
Rehearing Denied Jan. 21, 1975.
Page 984
Lefferdink, Legg & Nieschburg, John J. Lefferdink, Lamar, for plaintiffs-appellees.
Johnson & McLachlan, Harlan Johnson, Lamar, for defendants-appellants.
COYTE, Judge.
This appeal arises from the judgment of the trial court in cancelling two ten-year leases which contained options to purchase. We affirm.
Plaintiffs Velma VanDeusen and her son, Tommy VanDeusen, owned separate tracts of farm and grassland. The father and husband died, and, before death, expressed a desire to the Pipers that they enter into a long term lease of the property with his wife and son so that his wife and son would have a steady, reliable income. Shortly after the death of VanDeusen, the Pipers discussed the matter of a lease with Mrs. VanDeusen and her son, and left separate leases with them to study and to take to their attorney for his inspection. The leases were for a period of 10 years, and provided for the landlord to receive 1/3 share of the crop and granted to Pipers an option to purchase the property for $30 per acre. A few days later, when the Pipers returned to discuss the leases, Mrs. VanDeusen told them that she had been advised that no one should receive more than 1/4 share, whereupon the Pipers took the leases, had their attorney change the landlords' share from 1/3 to 1/4 and returned the leases to VanDeusens. On November 30, 1970, the leases were executed by the parties. On March 17, 1971, Pipers and Mrs. VanDeusen went to the Agriculture Stabilization and Conservation Service office to sign a form indicating an intention to participate in wheat payments. Shortly after this, plaintiffs questioned the propriety of the leases. On May 17, 1971, VanDeusens served a notice on Pipers that they were rescinding the lease option agreements and, on May 19, 1971, the VanDeusens filed separate suits against Pipers seeking to void the lease the option agreements because of fraud and misrepresentation. The suits were consolidated for trial to a jury which rendered a verdict for plaintiffs.
Defendants contend that the evidence does not support the verdict, that the verdict was the result of prejudice and sympathy, and that plaintiffs and ratified the agreement.
The evidence revealed that Mrs. VanDeusen was addicted to alcohol and had been admitted to Colorado State Hospital in Pueblo on October 20, 1970, and released from the hospital on November 13, 1970. Tommy VanDeusen suffered from cerebral palsy, was markedly retarded, and a guardian had been appointed for him. VanDeusens testified that Piper had told them that the leases were customary and usual in the area, that they relied on these representations and would not have signed the leases if they had not believed them to be true, and that said representations were, in fact, false. In contract to this testimony, there was evidence that VanDeusens had been advised to see their attorney, that they had the leases in their possession for a period of time and chose not to show them to their attorney, that no representations were made to them, and that some months after the execution of the leases the VanDeusens had ratified the same.
The determination of factual issues presented to the jury under proper instructions are binding on us. The rule is appropriately stated in Vigil v. Pine, Jr., 176 Colo. 384, 490 P.2d 934:
'(I)t is the sole province of the jury to resolve disputed issues of fact and its decisions regarding the credibility of witnesses, the weight to be accorded testimony, and the inferences to be drawn from the evidence, are not to be supplanted by the impressions of a reviewing court. Schneider v. Pinnt, 173 Colo. 232, 476 P.2d 1004; Book v. Paddock,Schell v. Kullhem, 129 Colo. 84, 267 P.2d 247; 127 Colo. 555, 259 P.2d 861.'
Defendants also contend that the court allowed plaintiffs' counsel to refresh the memory of the plaintiffs and lead them through their testimony. The manner in which the trial was conducted as to refreshing the minds of witnesses and asking leading questions was a matter within the discretion of the trial court. Berger v. People, 122 Colo. 367, 224 P.2d 228. We find no abuse of discretion.
Defendants also contend that the court erred in not allowing them to reopen their case in order to cross-examine Tommy VanDeusen. We disagree. The proof desired to be presented was relative to a statement claimed to have been made by Tommy VanDeusen to William H. Piper during recess just prior to argument to the jury. The question as to whether to reopen the case to evidence was a matter resting in the discretion of the court. Clopine v. Kemper, 140 Colo. 360, 344 P.2d 451. Under the circumstances here, the court did not abuse its discretion.
Defendants finally contend that the trial court erred in failing to instruct the jury relative to plaintiffs's alleged 'ratification' of the fraud by acceptance of benefits under the lease. We disagree.
Defendants tendered the following instructions:
'You are instructed that a person is not entitled to the rescission of an agreement unless the rescinding party has ceased to act in affirmance of the agreement, i.e., that a party cannot continue to accept the fruits of an agreement and at the same time pursue its rescission.'
The tendered instruction is an incorrect statement of the law since ratification may occur only if plaintiffs affirm the lease With full knowledge of the fraud. See Tisdel v. Central Savings Bank & Trust Co., 90 Colo. 114, 6 P.2d 912. Moreover, the jury was instructed on waiver in the form of Colorado Jury Instructions 19:17, and thus the given instructions adequately covered defendants' theory of the case in this regard. See Atencio v. Torres, 153 Colo. 507, 385 P.2d 659.
Judgment affirmed.
RULAND and STERNBERG, JJ., concur.