UNITED STATES COURT OF APPEALS
FOR THE THIRD DISTRICT
Case Number: 7-1220
Case Name: USA v. Donovan
david h. donovan, Appellant
POINTS AND AUTHORITIES IN SUPPORT OF THE APPEAL
It doesn’t matter what “charge,” indictment, information or complaint is brought against a private citizen by a prosecutor; bureaucrats never have a case against the private sector; their very nature dictates they can’t. While many would cry out in protest, no doubt those invested economically and/or emotionally in law enforcement, it is nonetheless an accurate statement.
This is such a simple exercise; I only have to use law enforcement against itself to prove it. By law enforcement, I mean the belief “citizens” and “states” exist as real things and the thought patterns supporting such beliefs.
Law enforcement is mind control; people surrender their property to men and women pretending to be “governors” and “presidents” etc., because they believe they are “citizens” of a so-called “state” or the U.S. and “must pay their fair share” and cooperate in order to be a part of society. Talk about abstract concepts.
Because of these beliefs, or programming, when a man pretending to be a “cop” or “state attorney” files a “complaint” against a private citizen, no attention is paid to the many absurdities present, even by the lawyer pretending he has a client, the so-called “state attorney.” The issue of standing is the only way of demonstrating these absurdities. One of these is despite the fact a “complaint” is filed, there is no “case or controversy” presented to the “court.” Rules programming equates “complaint” with “case.” No one under the influence of such programming challenges what a “cop” or “state” attorney files as both are perceived as “authority figures.” By that, I mean they do not challenge the assertion a “complaint” presents a “case or a controversy” to a court.
Standing is legally defined as “The position of a person in reference to his capacity to act in a particular instance…19 Am J2d Corp § 559.” Ballentine’s Law Dictionary, page 1209, Black’s Law Dictionary, 4th edition, page 1576. The nine lawyers commonly referred to as the “United States Supreme Court” have written: “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975).
If a plaintiff lacks standing, then courts, all courts, are legally/constitutionally incapable of proceeding because: “courts only adjudicate justiciable controversies.” United States v. Interstate Commerce Commission, 337 U.S. 426, 430. Notice the litigants in the last case if you’re thinking “government” is somehow “exempt” from standing requirements. People under the influence of law enforcement mind control automatically start trying to find “loopholes” and exemptions for their “authority figures”, the government. This psychological response is not unlike the Stockholm syndrome.
And make no mistake, this is considered a very important issue by the “Supreme Court” and government attorneys, especially when they are the defendants as proven by the recent case the Bush administration lost in regards to the NSA spying program. Standing is usually a bureaucrat’s first line of defense. Pay attention to what the “Supreme Court” wrote about the elements of standing: “The requirement of standing, however, has a core component derived directly from the Constitution. A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984) (emphasis added).
This of course references Article III § 2 of the “United States” “constitution” which requires a plaintiff to present a case or controversy before a court may proceed: “The judicial power shall extend to all cases and controversies…”:
“This case-or-controversy doctrines state fundamental limits on federal judicial power in our system of government. The Article III doctrine that requires a litigant to have “standing” to invoke the power of a federal court is perhaps the most important of these doctrines.” Allen page 750.
More explicit, standing requires the violation of a legally (government) recognized right. The Declaration of Independence proves this: “That to secure these Rights, Governments are instituted among Men…” And from the Bill of Rights in the “constitution”: “governments…are established to protect and maintain individual rights.” Article 4 and 5 of the Bill of Rights.
This means everything “governments” do must be to “protect and maintain individual rights.” The “Supreme Court” has held consistent with this principal: “the duty of this court, as of every judicial tribunal, is limited to determining rights of persons or of property, which are actually controverted in the particular case before it.” Tyler v. Judges of the Court of Registration, 179 U.S. 405 (emphasis added).
Standing consists of two absolutely essential elements: 1) violation of a legal right, and 2) personal injury.
In accord with the standing to sue doctrine in an action in federal constitutional court by citizen against a government officer, complaining of unlawful conduct there is no justiciable controversy unless citizen shows that such conduct invades or will invade a private substantive legally protected interest of plaintiff, citizen. Associated Industries of New York State v. Ickes, C.C.A. 2, 134 F.2s. 694, 702.
Likewise for government to have standing to sue a private citizen under this doctrine, government complaining of unlawful conduct there is no justiciable controversy unless government shows that such conduct invades or will invade a constitutionally authorized interest of plaintiff, government. Government is a system of polity: That form of fundamental rules and principles by which a nation or state is governed or by which individual members of a state or nations body politic are to regulate their social actions. The constitutional government and the laws made thereunder express the rights and duties of public officers (e.g.) government employee citizens.
The fundamental rules and principles referred to as code statutes are the regulations, restraints, supervision or control which is exercised upon the individual members of an organized jural society, e.g. government internally, by those invested with internal authority or the act of exercising supreme political (internal) power and control. Chicago B. & Q.R. Co. v. School Dist. No. 1 in Yuma County, 63 Colo. 159, 165 p. 260, 263.
The substantive due process clauses of the Fourth, Fifth and Fourteenth Articles of Amendment to the Constitution for the United States of America are a permanent injunction against governments of the nation United States and the several states baring them from imposing government bureaucrats and their internal rules, statutes, regulations, restraints, supervision or control upon the personal liberty and private property of the private citizen by any presumption or other false pretenses.
We see that standing to sue in all cases requires a controversy which is a cause of action. There are only two (2) causes of any action that can rise to the level of a case or a controversy. In both the civil and the common law, obligations and causes of action are divided into two classes – those arising ex contractu (out of a contract) and those ex delicto. The latter are such as grow out of or are founded upon a wrong or tort, e.g., trespass, trover, replevin. Where cause of action arises from a breach of a promise set forth in a contract, the action is “ex contractu”, but where it arises from a breach of duty growing out of contract, it is “ex delicto.” Eads v. Marks, 39 Cal, 2d. 807, 249 P. 2d. 257, 260.
In this instant claim before this court, I, in my private capacity have standing to sue and have stated a controversy with an actual cause of action. The Constitution for the United States of America is a contract between the governments and the American private people. The government, its bureaucrats and its pretend attorneys have breached the performance of their duty to protect my personal liberty and my private property arising from a breach of duty growing out of the contract of the Constitution, which could result in termination of said contract, if not corrected.
As a private citizen I have no duty to this great government other than to pledge my support, which I do , in all that is within its Constitution – by-laws. I have established a legal right in private property and an injury to my person as a live, natural, private citizen.
On the other side, the government, its bureaucrats and pretend attorneys have not established standing to sue, and failed to state a case or controversy and have not shown a contract from which a cause of action could arise. The government has not shown a violation of some legal right that it has under its terms and limitations of its Constitution. The government being nothing more than a public corporation which is a fiction, can not in any way show a personal injury. The bureaucrats and their pretend attorneys acting alter-ego in the name of the government for self-serving benefit perpetrated fraud and deceit upon me in my private capacity by making this claim and forcing the internal rules, statutes, regulations, restraints, supervision and controls of internal government on my private person and my private property by falsifying the record. The bureaucrats and their pretend attorney’s claims against myself and my private property are “ex dolo malo nonoritur actio.” The falsifying of the record is out of fraud and no action can arise: fraud never gives a right of action or establishes the standing to sue. No court should ever lend its aid to one who sounds his cause of action upon an immoral or illegal and unconstitutional act.
A judge, although he/she must be allowed discretion, the “sound, and conscientious exercise of this discretion, rest, in this, as in other cases, upon the responsibility of the judges, under their oaths of office.” United States v. Perez, 9 Wheat 579 CF.
A judge always errors when he/she abuses their discretion where a “judge exercises his authority to help the prosecution at a trial in which its case is going badly, by affording it another, more favorable opportunity to convict the accused.” Gori v. United States, 367 u.s. 364, 369.
For the reasons stated above, the decision of the district court as it pertains to the Plaintiff should be reversed for lack of standing to sue and failure to establish a case or controversy and to show an actual cause of action; and as it pertains to the Defendant, it should be reversed thus granting damages for Plaintiff’s taking of private property by interfering with Defendant’s use and enjoyment of private property as Defendant is the bonified purchaser for value of said property and Plaintiff violated Defendant’s federally protected right in said private property.
I declare the above to be true, correct and complete in accordance with the laws of the United States of America.
People V Pierce, tab from one page to the next
see Howard Griswold transcripts May 2011 ( May 20th)
**** the emails being read at the beginning of the call, it is a lesson in patience**
Subject: Re: Donovan appeal with cite on page 4 – Chicago B & Q.R. v School Dist. No. 1 Yuma County & Audio Link of 5 19 2011
May 19, 2011 Howard Griswold Classes on Lawful subjects
Jim at <firstname.lastname@example.org>, faithfully sends out Howard’s written transcripts on his newsletter upon request to him
Class begins around 1 hour and 45 min
The Pacific reporter, Volume 165
By California. Supreme Court, Colorado. Supreme Court, Kansas. Supreme Court, Oregon. Supreme Court, Nevada. Supreme Court, Arizona (Ter.). Supreme Court, Idaho
CHICAGO. B. & O. R. CO. v. SCHOOL DIST,
(Supreme Court of Colorado. May 7, 1917.)
1. Statutes ®=s6 — Enactment — Revenue Bills.
Sess. Laws 1911, p. 585, amending Rev. St. 1908, § 5895, providing for the establishment and maintenance of schools and the raising of revenue therefor, is not a revenue law within the meaning of Const, art. 5, § 31, requiring revenue bills to originate in the House of Representatives.
[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 5.]
2. Statutes <s=6 — Enactment — Revenub
Under Const, art. 5, $ 31, requiring that revenue bills originate in the House of Representatives, the Senate having power to originate Gen. Laws 1877, §S 2447-2544, being an act to establish and maintain school systems, although such act included provisions for the raising of necessary revenue, the Senate thereafter had the power to originate acts amendatory of the School Act, which provided for the levy and collection of school taxes.
[Ed. Note.—For other cases, see Statute*, Cent. Dig. § 5.]
3. Statutes <8=>6 — Enactment — Revenue Bills—”defraying Expenses or The GovErnment”—”service Op The Government” —”levying or Taxes.”
The levy of school taxes is not taxation for “defraying expenses of the government” or for the “service of the government.” and is not “the levying of taxes” in the strict sense of the words within the meaning of Const, art. 5, j) 31, requiring that all revenue bills originate in the House of Representatives.
[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 5.
For other definitions, see Words and Phrases, First and Second Series, Levy of Taxes.]
4. Words And Phrases—”government.”
“Government” is the exercise, of authority in the administration of the affairs of the state, community, or society; the authoritative direction and restraint exercised over the actions of men in communities, societies, or states (citing Words and Phrases, Government).
»For other cases see same tonic and KEY-NUMBER In all Key-Numbered Digests and Indexes
Colo.) CHICAGO, B. A Q. R. CO. v. SCHOOL, DIST. NO. 1 IN YUMA COUNTY 261
5. Constitutional Law <S=>48 — ConstrucTion Of Statute.
Where a statute is assailed as unconstitutional and there are two possible interpretations, the court will adopt that construction by which the statute will be constitutional.
[Ed. Note.—For other cases, see Constitutional Law, Cent Dig. § 46; Statutes, Cent. Dig. I 50.]
6. Constitutional Law €==48 — ConstrucTion Of Statute—Constitutionality.
A statute must be held constitutional unless the contrary appears beyond all reasonable doubt.
[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. § 46; Statutes, Cent. Dig. I 56.]
Error to District Court, City and County of Denver; James H. Teller, Judge.
Action by the Chicago, Burlington & Qulncy Railroad Company, a corporation, against School District No. 1, County of Yuma, and another. Judgment for defendants, and plaintiff brings error. Affirmed.
E. E. Whitted and Thos. R. Woodrow, both of Denver, for plaintiff in error. Jo. A. Fowler, of Denver, for defendants in error.
ALLEN, J. This was an action brought by the Chicago, Burlington & Qulncy Railroad. Company to recover a portion of the “Special School Tax” pard by the company under protest to the treasurer of Yuma county. The school board of the defendant, school district No. 1, certified to the board of county commissioners of Yuma county a 20-mlll levy, the board made the same, and the assessor used the levy in extending taxes against the property of the plaintiff railroad company. The levy was certified and made under chapter 206 of the Session Laws of 1911, being an act entitled
“An act to amend section five thousand eight hundred and ninety-five (5895) of the Revised Statutes of Colorado, 1906.”
The complaint was ‘drawn upon the theory that this act is one for raising revenue, within tfte meaning of section 31 of article 5 of the Constitution of the state of Colorado, and, the bill having originated in the Senate, the act is unconstitutional and void because enacted in violation of the above eonstltuttional provision. A demurrer to the complaint was sustained, and, the plaintiff electing to abide by the complaint, judgment was entered for defendants. Plaintiff brings the case here upon error. The sole question presented by the assignments of error and briefs of counsel Is the constitutionality of chapter 206 of the Session Laws of 1911.
Chapter 206 of the Session Laws of 1911, the act in question, was an act amending section 5895, Revised Statutes of 1908. That section was a part of the school laws of the state, which are embraced in chapter 124 of the Revised Statutes of 1908. These laws were enacted in obedience to section 2 of
article 9 of the Constitution, which is as follows :
“The General Assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously. One or more public schools shall be maintained in each school district within the state, at least three months in each year; any school district failing to have such school shall not be entitled to receive any portion of the school fund for that year.”
The first legislation pursuant to the above constitutional requirement was chapter 92 of the General Laws of 1877, entitled “Schools,” the same consisting of an act entitled “An act to establish and maintain a system of free schools,” approved March 20, 1S77. G. L. 1877, pp. 807-841, §§ 2447-2544. The section of the act of 1877 corresponding in its subject-matter to section 5893, R. S. 1908, was section 66. This section, among others, was amended by the Laws of 1881, p. 211. The school laws were carried into the General Statutes of 1883 under chapter 97 thereof, and section 66 became section 67, G. S. 1883, § 3062. The act was again amended in 1S87 by an act entitled “An act to amend chapter 97 of the General Statutes entitled ‘Schools.'” Session Laws 1887, p. 379. The act of 1887, among other things, amentied section 67, and that section, as amended, became section 5895, R. S. 1908.
As a first step in the consideration of the case at bar, it is proper to determine whether or not the act of 1877, above mentioned, was an act “for raising revenue” within the meaning of section 31 of article 5 of the state Constitution, which reads:
“All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose amendments, as in case of other bills.”
The main purpose of the act of 1S77 was “the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.” The provisions which it contained for the levy and collection of taxes was incident to the main purpose, but such provisions were necessary in order that the main purpose might be carried out and a school system established and maintained. With respect to the taxation provisions being incident to the main purpose of the statute, the act of 1877 is analogous to many laws, both state and federal. In the case of Assurance Co. v. Clayton, 54 Colo. 256, 130 Pac. 330, the court, in speaking of chapter 193 of the Session Laws of 1907, which was an Insurance act, used the following language:
“A bill designed to accomplish some well-defined purpose other than raising revenue, is not a revenue measure. Merely because, as an incident to its main purpose, it may contain provisions, the enforcement of which produces a revenue, does not make it a revenue measure. Revenue bills are those which have for their object the levying of taxes in the strict sense of the words. If the principal object, is another purpose, the incidental production of revenue growing out of the enforcement of the act will not make it a bill for raising revenue.”
ctoFor other cases see same topic and KEY-NUMBEK In all Key-Numbered Digests and Indexes
In the case of Geer v. Board of Commissioners, 97 Fed. 435, 38 O. C. A. 250, the United States Circuit Court of Appeals had under consideration, among other things, the constitutionality of the act of 1889 (Session Laws Colo. 1889, pp. 31, 32), authorizing counties to refund their judgment and bonded debts, which act provided for certain levies for carrying out the purposes of the act. To the contention that the act, having originated in the Senate, was void because it was a bill “for raising revenue,” within the meaning of section 31, art 5 of the state Constitution, the court replied:
“But a bill for raising revenue, within the meaning of this provision of the Constitution, is one which provides for the levy and collection of taxes for the purpose of paying the officers and of defraying the expenses of the government. This act was not of that character. Its main purpose was to authorize certain quasi municipal corporations to refund their debts. The provisions for the levy and collection of taxes which it contained were mere incidents to the general refunding legislation which it carried. * * • These provisions raise no revenue for the government, but, on the other hand, the act expressly provided that the moneys derived from the levies made under it should not be appropriated to pay the officers of the state or of the county, or to defray the expenses of governing the people. ••• “
The language quoted from the above cases Is In accord with numerous authorities. U. S. v. Mayo, 26 Fed. Cas. No. 15,755; U. S. v. James, 26 Fed. Cas. No. 15,464, 13 Blatch. 207; Northern Counties Trust v. Sears, 30 Or. 388, 41 Pac. 931, 35 L. R A. 188; U. S. v. Norton, 91 U. S. 569, 23 L. Ed. 454; Twin City Bank v. Nebeker, 167 U. S. 196, 17 Sup. Ot. 766, 42 Ia Ed. 134; Fletcher v. Oliver, 25 Ark. 289; Commonwealth v. Bailey, 81 Ky. 395; 1 Story on the Constitution (5th Ed.) 880; 36 Cyc. 946. The case of Fletcher v. Oliver, supra, contains the following expression:
“There are many laws that provide for raising money by taxation that are not revenue laws. The law under which the city derives the power to tax the property within its limits, originated in the Senate. The law organizing schools, and permitting the levy of a tax for that specific purpose, originated in the Senate, and no one ever dreamed of calling them revenue laws.”
[1,2] Under the authorities cited (and there appear to be none to the contrary) there can be no question but that the act of 1877, providing for the establishment and maintenance of a system of free schools, was not an act “for raising revenue” within the meaning of section 31 of article 5 of the state Constitution. The Senate, therefore, had the power to originate the bill which became the act of 1877. If the Senate had the power to originate a general and complete statute, as was the act of 1877, there does not appear to be any good reason why the Senate cannot originate a series of acts when each is but
a part of the complete and general law and all, taken together, are, and amount to the same, as one complete and general act.
It Is true that In a general act, as in the act of 1877, the provisions for the levy and collection of taxes are Incident to the main purpose of the statute, while in a special act such provisions may be all that is contained In the same. But It appears from most of the authorities cited that the general act under consideration In those cases was upheld, not only because the taxation features therein were Incident to the main purpose of the act, but also because the taxation provided for was not that kind of taxation which was for paying officers or defraying the expenses of the government.
The act of 1911, in controversy, considered by Itself, does not provide for any other taxation than that for the support and benefit of a school system. So far as pertinent to the subject under consideration, the act reads aa follows:
“5895. On or before the day designated by law for the commissioners of each county to levy the requisite taxes for the then ensuing year, the school board in each district shall certify to the board of county commissioners a statement showing the aggregate amount, which, in the judgment of said school board, it is necessary to raise from the taxable property of said district, to create a special fund for any of the purposes specified in section 51 of this chapter; said statement shall also show the items composing said aggregate and the purpose to which it is intended to devote each sum so itemized. It shall thereupon be the duty of the county commissioners to levy, at the same time that other taxes are levied, such rate, within the limits allowed by law, as will produce the aggregate amount so certified. The amount of such special tax, which shall be assessed to each taxpayer of such district, shall be placed in a separate column of the tax book, which shall be headed ‘Special School Tax,’ provided, in the case of districts of the third class no higher rate than twenty mills per dollar shall be levied. * * * >•
Section 51, referred to, is section 5925, R. S. 1908, which enumerates the powers of school boards, who are required, among other things, to employ and pay teachers*, to provide school furniture and equipment, and to provide books for indigent children, to repair school buildings, and, when necessary, to rent, build, or remove schoolhouses. To use the language of the court in the case of Assurance Co. v. Clayton, 54 Colo. 256, 130 Pac 330, does the foregoing statute have for its object “the levying of taxes In the strict sense of the words”? Or, In the language of the opinion in Geer v. Board, supra, is the levy provided for “defraying the expenses of the government”? The case of Commonwealth v. Bailey, 81 Ky. 395, 399, contains the following in the opinion:
“The principle underlying this provision of the Constitution is founded on the ground that the people are bound to pay the taxes to support the government in consideration of protection to their lives, liberty, and property ; hence the power of taxation was placed in the hands of the popular branch of the Legislature as a means of security to the people, from whom its members are selected, against exactions by taxation for other than strictly governmental purposes. This view excludes from the comprehension of this constitutional clause such bills as appropriate money to or from the treasury, raised from the people in consideration of other benefits and services than protection in their lives, liberty, and property.”
The act of 1911, In controversy, does not provide for any levy or taxation for paying any public omcers, or for aiding In or securing protection of life, liberty, and property.
 The levy and collection of taxes for the maintenance of a school system Is not taxation for “defraying the expenses of the government” as that expression is used In the opinion in Geer v. Board, supra, or “for the service of the government,” as the same idea is expressed in U. S. v. Mayo, supra. The making of a tax levy for school purposes is not “levying of taxes in the strict sense of the words,” as these words are used In the case of Assurance Co. v. Clayton, 54 Colo. 256, 130 Pac. 330, and other cases.
 The meaning of the term “government” is so commonly understood that to define the same does not appear to be necessary, yet the term, as used in the cases cited, may be defined as:
“The exercise of authority in the administration of the affairs of a state, community, or society; the authoritative direction and restraint, exercised over the actions of men in communities, societies, or states.” People v. Pierce, 18 Misc. Rep. S3, 41 N. Y. Supp. 858; 4 Words and Phrases, 3138.
 If it were conceded that reasons could be adduced for holding the act of 1911 a revenue measure within the meaning of section 31, art. 5, of the state Constitution, yet since It is possible, right, and proper to uphold the act under the authorities cited, the latter is clearly the duty of this court.
“It is an elementary principle that where the validity of a statute is assailed and there are two possible interpretations, by one of which the statute would be unconstitutional and by the other it would be valid, the court should adopt the construction which would uphold it.” 6 Ruling Case Law, 78, § 77.
 We are required to uphold legislation, unless its unconstitutionality appears beyond all reasonable doubt. Farmers’ Independent Ditch Co. v. Agr. Ditch Co., 22 Colo. 513, 528, 45 Pac. 444, 55 Am. St. Rep. 149; Denver City v. Knowles, 17 Colo. 204, 211, 30 Pac. 1041, 17 L. R. A. 135. An act Is to be overthrown only when it is clear and unquestioned that it violates the fundamental law. Feople v. Rucker, 5 Colo. 455, 458; People v. Goddard, 8 Colo. 432, 437, 7 Pac. 301; Munn v. People of the State of Illinois, 94 U. S. 113, 24 L. Ed. 77. These cases are quoted from, with approval, in Consumers’ league v. C. & S. Ry. Co., 53 Colo. 54, 58, 125 Pac. 077, Ann. Cas. 1914A, 1158. This court In People v. Commissioners, 12 Colo. 89, 93, 19 Pac. 892, 894, having for determination the constitutionality of the act of 1887, of
which the act of 1911 in controversy is amendatory, used the following language:
“The doctrine is elementary that no act of the General Assembly should be declared unconstitutional unless it is clearly and palpably so. * * • In a matter so important as the maintenance of public schools, the courts should incline to uphold, rather than to defeat, the action of the officers charged with the execution of the laws.”
Upon the grounds hereinbefore stated, we hold that the act of 1911 In controversy, the same being chapter 206 of the Session Laws of 1911, Is not an act “for raising revenue” within the meaning of section 31, art. 5, of the state Constitution, and is therefore constitutional and valid.
The complaint was based upon the statute of 1887, or section 5895, R. S. 1908, as it stood prior to the act of 1911 amending the same, and was framed upon the theory that the act of 1911 was unconstitutional and void as being a revenue measure which originated in the Senate. The statute of 1911 being constitutional and valid, the demurrer to the complaint was properly sustained. The judgment is affirmed.
WHITE, O. J., and BAILEY, J., concur.
CO. v. WOOD. (No. 8574.) (Supreme Court of Colorado. March 5, 1917. Rehearing Denied June 4, 1917.)
Sales <g=>38(7) — Buyer’s Action Fob ReScission—Misrepresentations. Where a tractor was purchased under a written agreement making no representations regarding the fuel it could use, and the buyer made a part payment and signed a receipt reiterating the original contract terms after the use of distillate as fuel had proved unsatisfactory, he cannot rescind because the seller’s agent stated the tractor could use such fuel before the contract was signed.
[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 74, 75.]
Error to District Court, Denver County; John H. Denison, Judge.
Action by Nicholas A. Wood against the Emerson-Brantlngham Implement Company. Judgment for plaintiff, and defendant brings error. Reversed.
Frank L. Grant, of Denver, for plaintiff in error. W. G. Temple and E. M. Sabln, both of Denver, for defendant In error.
SCOTT, J. The plaintiff in error sold to the defendant in error under a written contract, a Big Four gas traction engine for the sum of $3,100, with freight to be added from Minneapolis, Minn., to Brlggsdale, Colo. Five hundred dollars was to be paid in cash, and the remuinder in three promissory notes —one for $200, due June 15, 1913; one for $1,200. due November 1, 1913; and one for $1,200, due November 1, 1914. This action is by the defendant in error for a reclssion of the contract. The agreement was dated March 29, 1913, and, in so far as it seems necessary to consider, recites:
&=For other cases see same topio and KEY-NUMBER in all Key-Numbered Digests and Indexes
“That as soon as reasonably possible after notice from the purchaser [N. A. Wood] of the arrival of said engine at said station [Briggsilale, Colo.] to send an operator at its own expense to start said engine and instruct the purchaser in its proper operation, and direct and supervise the trial hereinafter provided for. The purchaser further agrees that he will puri-hase said engine for the price and settle for it upon the terms hereinafter set forth: If aftIt three days’ trial of the engine under the direction and supervision of said operator in such lield work as the purchaser may elect (and he .igrees immediately upon arrival of the engine to furnish the place and designate the kind of work for such trial, weather conditions being favorable), it shall be demonstrated that the engine will and does fulfill the following conditions: (a) That the engine will develop its rated horse power at the drawbar, (b) That the engine, if rated at 30 or more horse power, will furnish ample and steady power to drive any 40-ineh cylinder threshing machine, complete with self-feeder, weigher, and blower. * • • If said engine, fixtures, and equipment are not so purchased, the purchaser agrees within two days after the expiration of such three days’ trial to return same to said railway station, and said purchaser further agrees that his failure to so return said engine, fixtures, and equipment within two days after said three days’ trial shall be proof conclusive that said engine and equipment fulfilled the warranty in every respect, and shall constitute an acceptance and purchase of said engine, fixtures, and equipment by the undersigned at the price and upon the terms and conditions hereinbefore stated.
“Sixth. It is mutually agreed that said engine, fixtures, and equipment are purchased upon the following warranty only, viz.: (a) Should any parts (except electrical parts) prove defective within one year from the date of purchase of said engine, on account of inferior material or workmanship, and such parts be returned to the Big Four Tractor Works, Minneapolis, Minn., transportation prepaid thereon, and be found by the company to be defective on account of inferior material or workmanship, said company will furnish new parts in lieu of such defective parts on board cars, Big Four Tractor Works, Minneapolis, Minn. * * *
“Seventh. It is expressly agreed that settlement for or the retention of said engine beyond the time specified in clause fifth thereof shall be a waiver of all other representations, warranties, terms, or contentions upon which said engine is ordered or purchased, except those in clause sixth hereof.
“Eighth. It is further agreed that this order and agreement is given and accepted, and the sale and purchase of said engine, fixtures, and equipment are made, upon the express condition that this order and agreement contains all the terms and conditions of the sale and purchase of said engine, fixtures, and equipment, and cannot in any manner be changed, altered, or modified without the written consent of the officers of said company, and that the sending of any person by the company to repair or operate said engine or the remaining of the person sent to start said engine, after the expiration of said three days’ trial, shall in no manner waive, modify, or annul any of the terms or conditions hereof.”
At the foot of the agreement appears the following, signed by the plaintiff:
“I acknowledge that I fully understand all the terms and conditions of the above agreement, and that I have this day received a copy of the same.”
The specific allegations of fraud upon which the purchaser relies are:
“(3) That the defendant, with intent to deceive and defraud the plaintiff, and to induce him to purchase such engine, falsely and fraudulently represented to the plaintiff, at and prior to the time of said sale, that the said engine would develop full thirty (30) horse power, and would burn kerosene, distillate, and other low-grade fuel of that character successfully and with much greater economy than any of the so-called ‘kerosene engines,’ and that the plaintiff relied upon said representations and was thereby induced to purchase and pay for said engine as aforesaid.
“(4) That in truth, and as the defendant then well knew, the said representations made by the defendant to the plaintiff regarding said engine as aforesaid were false and untrue, and that the said engine did not and could not be made to develop a capacity of thirty (30) horse power, and will not successfully burn kerosene, distillate, or other low-grade fuel of that character, and cannot be successfully operated with such fuel, and can only be operated with gasoline or naphtha, the cost of which fuel prohibits the use of said engine, makes the same impracticable for farming purposes, and renders the said engine absolutely worthless to this plaintiff.”
Verdict was rendered in favor of the plaintiff below In the following words:
“We, the jury, find the issues herein joined for the plaintiff, and assess his damages at the sum of $9S9.23.”
The record does not recite the formal decree, if such was entered, but we are advised only that it was:
“Ordered that judgment be entered in favor of the plaintiff and against the defendant in accordance with the verdict herein.”
We arc not advised by the record as to whether the court ordered the contract to be rescinded, the notes to be canceled, or that any equitable relief was otherwise granted. Just how the court could have rendered the money judgment for damages, without a finding as to fraud, and the prerequisite order for rescission of the contract, is not suggested by counsel for either party, but in order to avoid further litigation we will determine the matter on the issues raised by the pleadings.
It will be observed that the only allegation upon which the plaintiff relied was that the defendant represented, at a time preceding the signing of the contract, that the engine would burn kerosene, distillate, and other low-grade fuel of that character successfully, and with greater economy than any of the so-called kerosene engines, and that in fact it cannot be successfully operated with such oils, and can only be operated with gasoline or naphtha, the cost of which Is impracticable and prohibitive for fanning purposes. There is no other complaint, either in the pleadings or testimony. Nothing is said in the agreement as to the character of fuel the engine will burn. The agreement describes the machine as a gas traction engine, not an engine to be operated by the use of oil.
The plaintiff testifies that the representation made to him was by the agent of the
company prior to the agreement. The record discloses that the plaintiff Is a physician and a man of business. There Is no contention but that he did not read and sign the agreement knowingly and without the slightest misunderstanding as to its contents, including his own statement therein that he fully understood its terms and conditions. Yet his only contention Is for a condition which he well knew was not contained in the agreement when he signed it. He does not protend to attack, either by pleading or proof, the good faith of the company In any other respect.. The machine was delivered at his premises, on its own power, from the railroad station, some eight miles distant It was subjected to the test provided In the agreement. The plaintiff employed for such purpose his brother, who was an experienced engineer and machine man, and who made the test In conjunction with the company’s expert. It was after this test that he made the cash payment and signed the notes, and at which time he executed the following receipt:
“Receipt for Machinery Delivered. Dated at Denver, Colo., 4—23—1913. Received of Emerson-Brantingham Implement Company (an incorporated company), of Rockford, Illinois, the following described machinery: One Big Four ’30” tractor, No. 1347, under and pursuant to the conditions of a written order signed by N. A. Wood, dated on the 29th day of March, 1913, which order contains a written warranty from said company on said machinery; a copy thereof being received by us. It is expressly understood and agreed that the above-described machinery is received by the undersigned under and pursuant to the terms and conditions of the said written warranty and not otherwise (any changes in the machinery ordered or terms of payment notwithstanding), and that said written order and warranty contains all the agreements between us on account of said purchase; that the notes given by the undersigned to the company for said goods and the mortgage securing said notes were examined and read before they were executed, and the same are delivered in fulfillment of said written agreement
“[Signed] N. A. Wood.”
The test began on or about April 15th. The plaintiff had shipped distillate to the farm, and it was tried and did not work successfully. Indeed, distillate was used for a part of the distance from the station to the farm, and did not prove satisfactory, all this with the knowledge of plaintiff, and before he made his payments and signed the receipt, in which it was reiterated that the written agreement and warranty contains all the agreements between the parties. It is plain that the plaintiff had full opportunity to learn from his own observation and examination as to the truth or falsity of the alleged misrepresentations, before he paid for and gave his receipt for the machine. The law in such case is well settled and no longer admits of argument:
“Ifj after a representation of fact, however positive, the party to whom it was made institutes an inquiry for himself, lias recourse to the proper means of obtaining information, and ac
tually learns the real facts, he cannot claim to have relied upon the misrepresentation and to have been misled by it. Such claim would Bimply be untrue. The same result must plainly follow when, after the representation, the party receiving it has given to him a sufficient opportunity of examining into the real facts, when his attention is directed to the sources of information, and he commences, or purports or professes to commence, an investigation. The plainest motives of expediency and of justice require that he should be charged with all the knowledge which he might have obtained, had he pursued the inquiry to the end with diligence and completeness. lie cannot claim that he did not learn the truth, and that he was misled.” Pomeroy’s Equity Jurisprudence, § 893.
Courts may not destroy the stability and certainty of written contracts upon such a frivolous showing as is here presented. It was said by this court in St. Vrain Co. v. Denver U. P. Ry. Co., 18 Colo. 211, 32 Pac, 827:
“By the oral evidence proposed it is attempted to show that the cafion location was certainly and definitely agreed upon, to the exclusion of the route outside of the canon. This is in direct contradiction of the terms of the written agreement. If such proof is admissible under the claim of fraud, then any oral agreement would be admissible to vary and contradict the terms of a written contract. This cannot be permitted. The rule contended for would, if adopted, introduce an clement of uncertainty into written contracts that could only be productive of strife between the parties. After a written contract has been executed, oral negotiations leading up to such a contract’ cannot be shown, for the purpose of changing or contradicting its terms.”
There are other errors presented, which would seern to justify a reversal of the judgment, but are not considered, in view of what has been said.
WHITE, C. J., and GARRIGUES, J„ concur.
STELSON v. HAIGLER. (No. 8778.) (Supreme Court of Colorado. May 7, 1917.)
1. Brokers <g=»C4(l) — Realty BjBOKEB— Right To Commission.
Though a purchaser of realty secured by a broker was ready and willing to make the first payment called for by the contract of sale at the time it became due, his readiness and willingness was not sufficient, he not having made the payment nor offered to do so, to entitle the broker to commission, which was to be paid from such first payment
[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 67, 97.]
2. Vendor And Purchaser <®=>144(2)—JustiFication For Refusing Payment—Defects In Title.
Where a contract for the sale of realty provided that, should there be any defects in the title of the lands and water rights, the buyer gave the seller reasonable time to have such defects set aright, and the irregularities complained of were not suggested to the seller until after the first payment under the contract was to be made, and such defects were cured with all reasonable diligence in about three months, the buyer was not justified in refusing or neglecting to make tender of payment, or payment, as provided in the contract of sale, because of defective title.
eJ=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
[Kd. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 272-274.]
3. Vendor And Purchaser <S=3(4)—”option” –“contract Of Sale.”
Where the owner of land executed a memorandum agreement providing that he sold and agreed to convey by warranty deed, etc., the full purchase price for the land being $131,000, to be paid ns follows: $1,000 to be placed in escrow with a bank to be turned over to the seller on the finding of marketable titles by the buyer, and $30,000 on or before December 1, 1912, and $100,000 March 1, 1918—the buyer nowhere in the agreement agreeing to purchase or to make any payment or to bind himself in any other respect, aside from forfeiture of the amount paid at the time the contract was made, the agreement was an “option” to purchase, and not a “contract of sale,” since, unless a contract contains language which may be reasonably construed as an agreement on the part of the buyer to purchase the property, or to assume some obligation thereunder, it is an option contract, and not an agreement of sale and purchase, which creates mutual obligations, while an option gives a right to purchase without imposing any obligations.
[Kd. Note —For other cases, see Vendor and Purchaser, Cent. Dig. § 3.
For other definitions, see Words and Phrases. First and Second Series, Contract of Sale; Option.]
4. Brokers <8=49(2)—Realty Broker—NegoTiation Of Option Contract—Right To Commission.
An njjent employed to sell or find a purchaser has not performed his contract by negotiating a mere option contract, and therefore is not entitled to recover the agreed, or indeed any, compensation for such services.
[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 71.]
Error to District Court, El Paso County; John E. Little, Judge.
Action by Arthur W. Halgler, doing business under the firm name and style of the llaigler Realty Company, against D. C. Stelson. To review a judgment for plaintiff, defendant brings error. Reversed.
R. L. Chambers and Robert Kerr, both of Colorado Springs, for plaintiff In error. Harris & Price, of Colorado Springs, for defendant In error.
SCOTT, J. The action Is by the Halgler Realty Company to recover from Stelson the sum of $5,000 alleged to be due as a real estate broker’s commission for the sale of Stelsou’s ranch. The commission is claimed both under a written contract and as the value of the services rendered. The record discloses that Stelson gave the Haigler Realty Company a written agreement which both agree was intended as a contract of employment to sell the ranch of Stelson. Later the llaigler Realty Company presented R. F Kloke, a real estate broker of Omaha, Neb. who received from Stelson the following memoranda of agreement, omitting so much thereof as Is immaterial In this proceeding:
“The party of the first part sells and agrees to convey to the party of the second part by warranty deed and abstract brought down to
date of transfer, the same to show marketable title, the following described lands and water rights: [Here follows description.]
“The full purchase price for the above-described lands and water rights being $131,000, to be paid as follows: One thousand dollars to be placed in escrow with the Exchange National Bank of Colorado Springs, to be turned over to the party of the first part upon the finding of marketable titles by party or the second part; $30,000 on or before December 1, 1912; $100,000 March 1, 1918, the same to be evidenced by promissory note bearing interest at the rate of 6 per cent, per annum, payable semiannually, to be secured by first mortgage covering the aforesaid lands and water rights. • » *
“Tenth. That he will execute warranty deed showing marketable titles free and clear of all liens and incumbrances as above set forth covering the above-described land, conveying the said lands and water rights to the party of the second part, his heirs or assigns, or to any one whom said party of the second part may direct upon the payment of the said $30,000 and the execution of note and mortgage as above set forth, the same to be paid and executed on or before December 1, 1912.
“It is further agreed between the parties hereto that should there be any defects in the title covering above-described lands and water rights that the party of the second part gives the party of the first part reasonable time through the courts to have such defects set aright.
“It is mutually agreed that the time of payment shall be an essential part of this contract, and in case of failure of the said party of the second part to make either of the payments above mentioned this contract shall be forfeited and determined, at the election of the said party of the first part, and the said party of the second part shall forfeit all payments made on this contract, as liquidation of all damages to party of the first part. * * *
“Colo. Springs, Colo., Sept. 2, 1912.
“Received of R. F. Kloke, Omaha, Neb.—$1,
000 to apply as part payment on the land mentioned in contract between myself and R. F. Kloke, copy of which is attached hereto.
“Should the said R. F. Kloke not find the abstracts covering the lands and water rights marketable as mentioned in the said contract,
1 do hereby agree to return to said R. F. Kloke the $1,000 paid to me on this dute; the said $1,000 being paid to me in lieu of the $1,000 which is to be placed in escrow in the Exchange National Bank, Colorado Springs, Colo., as recited in said contract.
“[Signed] D. C. Stelson.”
Haigler testifies that the receipt above set forth was a modification of the preceding agreement. Verdict and judgment were rendered against the plaintiff in error in the full sum of $5,000.
It is contended by the defendant that the agreement between Stelson and Kloke was a mere option, and not an agreement of sale and purchase; that the option did not ripen into a sale, and therefore the plaintiff did not produce a purchaser ready, able, and willing to purchase the lands, and for such reason Is not entitled to a commission. The contention of the plaintiff is that this agreement was an absolute contract of purchase and sale.
 There were no further payments made by Kloke, nor was there any tender of payment. It is true that Kloke testified that he was ready and willing to make the first payment at the time It became due, but If this be true, It was not sufficient, in view of the fact that he did not make the payment nor offer to do so. He further says that he came to Colorado Springs and saw Haigler and told him that he was ready to pay, but he did not see Stelson, nor seek to see him, and immediately returned to Omaha.
ft=>For other cases see nmi topic and KEY-NUMBER In all Key-Numbered Digests and Indexes
We said in Bailey v. Lay, 18 Colo. 405, 33 Pac. 407:
“The averment that Cummins and Olcott and the Iron Mask Company were ready and willing to accept the premises and make payment is not equivalent to an averment of payment or of an offer to pay. In a case of this kind, when the time for payment has actually arrived, mere readiness and willingness to pay are immaterial; Buch readiness and willingness, without more, will not discharge contract obligations. An averment of readiness and willingness to pay presents nothing tangible or substantial; it involves little more than the state of mind of the party presenting the plea; and the determination of an issue taken thereon would not decide the rights of the parties. On the other hand, an averment of payment or of an offer to pay is an averment of an overt act, an important and substantial fact; and the determination of an issue taken thereon would, subject to other issues in the case, be decisive of the controversy.”
Kloke was a real estate broker, and It Is plain from the record that he did not Intend to make a purchase of the premises, but rather to secure an option that he might have opportunity to sell the lands. It Is also made clear that Kloke did not come to Colorado Springs on December 2, 1912, for the purpose of making the payment, or any tender of the same. This appears from a night letter telegram from Haigler to Kloke sent on the evening of November 29th, with but one Intervening day before time for payment. This telegram was as follows:
“To R. F. Kloke, Omaha National Bank Bldg., Omaha, Neb. “Letter received. Stelson demands $1,000.00 for extension of contract for 20 days to apply on purchase price, but according to terms of contract we think if you get abstracts here with your requirements on title by Dec. 2d that it would continue in force until he furnished marketable title therefor. Do not fail to get abstracts here with your requirements by Dec. 2d. Answer.”
Kloke appears to have come to Colorado Springs in response to this telegram, bringing the abstracts with him and returned to Omaha without even advising Stelson of his presence. It Is palpable that the purpose was to secure time, and not to make either payment or tender. The plaintiff’s agreement specifically recites:
“The title is to be marketable and good and sufficient warranty deed to be executed and delivered by the said D. C. Stelson to the Haigler Realty Company, their heirs or assigns, on or before the 1st day of December, 1912, together with abstract showing marketable title, provided the $1,000 is tendered or paid on or before the 3d day of September, 1912, and $30,000 is tendered or paid on or before the 1st day of December, 1912. If the said payment as above mentioned is not paid or tendered on or before the dates mentioned above, then this contract is to be void and of no effect, and both parlies are released from all obligations therein, and in that
event the said $1 paid on this date is to be held by D. C. Stelson as liquidated damages.”
“If sale is made as above stated, I agree to pay Geo. W. Morse $1,000 and the Haigler Realty Company $5,000 out of the $30,000 payment above mentioned.”
It will be seen from this that the $30,000 payment must be either tendered or paid on or before the 1st day of December, 1912, and that such tender or payment was a condition precedent to the execution of the deed and Its delivery with the abstracts, and that, if not so tendered Op paid, the agreement was to be void, and both parties to stand released therefrom; again, that the compensation to the Haigler Realty Company in any event was to be made from the first or $30,000 payment.
It is agreed that this sum was not paid nor tendered, nor any part thereof, as stipulated, nor at all. It is clear, therefore, that unless such first payment or tender was excused, or made unnecessary by the acts and conduct of Stelson, the plaintiff cannot recover;’ for this was the result which the Haigler Company agreed to produce In consideration of the commission. But, Independent of this express provision, It was the duty of Kloke to make the first payment provided in his agreement. It was held in the case of Bailey v. Lay, supra, that:
“The gravamen of the complaint is that defendants Lay, Mallory, and Brown refused to make and deliver a deed of conveyance of their certain mining property to the Iron Mask Mining & Smelting Company, as by said agreement in writing they had contracted to do. According to the terms of the written agreement, the defendants were to deliver the deed to the mining property at the time of the first payment of $250,000. * * *
“The agreement in regard to the first payment and the agreement to deliver the deed were to be performed at the same time; they were mutual and dependent agreements; and performance or an offer to perform in respect to first payment was necessary to make it incumbent upon the defendants to deliver the deed. Englander v. Rogers, 41 Cal. 420; Bakeman v. Pooler, 15 Wend. [N. Y.] 637; 2 Parsons on Contracts, 528; Chitty on Contracts (11th Ed.) 1082.”
The record does not disclose that Stelson at any time refused to comply with this written agreement, but, on the contrary, and for a long time after December 2, 1912, when the first payment became due, and even up to the commencement of this action, he still offered to make the sale upon the terms stated in the agreement.
Stelson, after December 1, 1912, wrote letters both to the Haigler Realty Company and to Kloke urging that the matter be closed up as it was important to prepare for the approaching season’s work on the ranch. As late as March, 1913, more than four months after the first payment became due, Kloke wrote Stelson asking for an extension of time, and declared that “the chances are that nothing can be done for some little time in the way of closing it up.”
COUNTY LAW UPDATE
by Mike Rainwater on 12/03/2003
Section 3 of Act 1207 of 2003 requires all sheriffs’ departments to adopt (by
01/01/2003) a written
policy that: (1) prohibits unlawful profiling as defined by Act 1207 (racial,
ethnic, national origin, or
religious profiling); (2) requires that law enforcement officers have reasonable
suspicion prior to a stop,
arrest, or detention; (3) defines reasonable suspicion, to ensure that
individuals are stopped for valid
reasons, and that race, ethnicity, national origin, or religion are not a basis
for stops for violations for
which other non group members would not be stopped; and (4) requires law
enforcement officers to
identify themselves by full name and jurisdiction, and state the reason for the
stop and when possible
present written identification.
Unlawful Profiling Prohibited : Section 2 of Act 1207 of 2003 prohibits: (1)
and (2) “the detention of an individual based on any non criminal factor or
combination of non criminal factors
Unlawful Profiling Defined: Section 1 of Act 1207 of 2003 describes unlawful
profiling as “the
practice of a law enforcement officer relying, to any degree, on race,
ethnicity, national origin, or religion in
selecting which individuals to subject to routine investigatory activities, or
in deciding upon the scope and
substance of law enforcement activity following the initial routine
investigatory activity, except that racial
profiling does not include reliance on the criteria in combination with other
identifying factors when the law
enforcement officer is seeking to apprehend a specific suspect whose race,
ethnicity, or national origin is part
of the description of the suspect, and the description is thought to be reliable
and locally relevant.”
Review Process for Identification of Unlawful Profiling: Section 3 of Act 1207
of 2003 also requires
all sheriffs’ departments to adopt a written policy (by 01/01/2003) that: (1)
provides for a systematic review
process by supervising personnel within a department or law enforcement agency
for investigating allegations
of racial profiling to determine whether any officers of the law enforcement
agency have a pattern of stopping
or searching persons; (2) requires an investigation, if the review reveals a
pattern, to determine whether a trend
is present indicating that an officer may be using race, ethnicity, national
origin, or religion as a basis for
investigating other violations of criminal law; (3) provides, where a supervisor
or other reviewer has detected
a pattern of racial profiling, timely assistance, remediation, or discipline for
individual law enforcement officers
who have been found to be profiling by race, ethnicity, national origin, or
religion; (4) ensures that supervisors
will not retaliate against officers who report racial profiling by others; and
(5) provides standards for the use
of in-car audio and visual equipment, including the duration for which the
recordings are preserved.
Annual Training Required: Section 4 of Act 1207 of 2003 requires all sheriffs’
departments to provide
annual training (starting 01/01/2004) to all officers that “emphasizes the
prohibition against [unlawful]
profiling … . and stresses … development of effective and appropriate
methods of carrying out law enforcement
This communication is neither legal advice nor legal counsel. It is merely legal
information intended to promote meaningful, problem-solving dialogue on this or
related subjects. For specific legal questions and liability concerns, before
acting on this information, and before adopting any policy or protocol on this
obtain the specific legal advice of your attorney. The author grants
governmental, charitable, and non-profit entities and officials thereof
permission to reproduce
this lawletter, provided that it is reproduced as is and is not used for profit.
Copyright, 2006. Sort Code: Force 012