White v. Baugher , 82 Colo. 75 ( 1927 )

BAUGHER, plaintiff below, had judgment against White on trial to the court, and the latter brings error and moves for supersedeas. The judgment must be reversed.

The action was to rescind a contract by which White had agreed to convey 160 acres of land to Baugher upon the transfer, which Baugher had agreed to make, of the lease and furniture of a rooming house in Denver known as the Lehigh Apartments, and further considerations not material here.

The complaint charged false representations by White as to the amount of land under cultivation. The answer charged false representations by Baugher, including statements as to the quality of the furniture, and the income of the said apartments.

Upon trial the defendant offered to prove these charges, but the evidence was rejected by the court. The representations above specified were relevant, material and competent, whether other representations were or not, because, if the plaintiff made them and they were false, he was not in court with clean hands, and the court should have dismissed the bill. The evidence therefore should have been received. Drake v. Gilpin MiningCo., 16 Colo. 231, 27 P. 708; Williams v. Davis, 81 Colo. 230,254 P. 777; Drovers Nat. Bank v. Denver LiveStock Exchange, 74 Colo. 212, 220 P. 402; Primeau v.Granfield, 193 Fed. 911, 913, 914; s. c., 225 U.S. 708,32 Sup. Ct. 839, 56 L.Ed. 1267; Sovereign CampWoodmen of the World v. Woodmen, 73 Colo. 57,213 P. 579.

It is claimed that the defendant, after he discovered the falsity of plaintiff's representations, ratified the contract. If that is true it is irrelevant to the present questions, thought it would be important if the defendant were seeking rescission. The rule as to "clean hands" is one of public policy for the protection of the integrity of the court, not for a defense. 21 C.J. 186; Houtz v. Hellman,228 Mo. 655, 661, 128 S.W. 1001. A party cannot waive it. It has even been enforced between two parties because they have combined to defraud others, and in such case the parties have waived the maxim in limine, were that possible. Primeau v. Granfield and Drovers NationalBank v. Denver Live Stock Exchange, supra.

Both parties ask us to determine the case on this motion for supersedeas.

The judgment is reversed and new trial granted.

MR. CHIEF JUSTICE BURKE, MR. JUSTICE WHITFORD and MR. JUSTICE SHEAFOR concur.