Opinion
April 21, 1970
Editorial Note:
This case has been marked 'not for publication' by the court.
Sanford B. Hertz, and Leland S. Huttner, Denver, for plaintiff in error.
Sonheim, Whitworth & Helm, Robert H. Sonheim, Arvada, for defendant in error.
SILVERSTEIN, Chief Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Miss Wilson sued Tinn to recover $6,000. She alleged two claims for relief: the first on a promissory note executed by Tinn and the second on the basis that the 'monies were obtained by the Defendant from the Plaintiff by false pretenses and false representations * * *.' At the trial it was stipulated that Tinn had been adjudicated a bankrupt and that if 'there is no fraud, the debt is discharged in bankruptcy * * *' and if there is fraud then the debt is not discharged. Trial was to the court. The court found no fraud and entered judgment for the defendant. We affirm.
In order to recover in an action on false representations a plaintiff must establish Inter alia that the representations were false representations of a material existing fact, known to be false by the person making the representations, that they were made with the intent that they be relied on, and that they were relied on to plaintiff's damage. Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458.
Evidence of fraud must be clear and convincing. Wiley v. Byrd, 158 Colo. 479, 408 P.2d 72. In the instant case it was neither.
Miss Wilson attempted to show that she was induced to loan Tinn the money by his representations that the loan would be secured by 600 shares of stock in Fashions by Tinn, Inc., a corporation controlled by Tinn, whereas in fact he was not in a position to produce the shares. However, the evidence established that Miss Wilson agreed to lend the money before any mention was made of the stock, that the money was loaned several days before execution of the note and that the furnishing of security for the note was first discussed when the note was executed. Further, Miss Wilson testified that Tinn agreed to deliver the stock or repay the money on the due date of the note.
It therefore appears that there was no reliance by Miss Wilson on any representation relative to the stock and that Tinn's 'representation' was actually a promise to perform an act in the future. His failure to perform was a breach of contract and not a basis of fraud. Carlsen v. Perkins, 160 Colo. 4, 413 P.2d 456.
Plaintiff asserts as error that the findings of fact and conclusions of law of the trial court were inadequate. We do not agree.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.