Opinion
No. 74-372
Decided July 8, 1975. Rehearing denied July 29, 1975.
From a judgment for plaintiff for $1,700 for breach of contract providing for installment payments, defendant appealed.
Affirmed as modified
1. PRACTICE AND PROCEDURE — Memorandum Brief — Motion for New Trial — Requirement Waived — Trial Court Decision — Appealable Judgment. Although the rules of procedure require that a memorandum brief be filed with a motion for new trial, and although it is within the discretion of the trial court to strike a motion for new trial unaccompanied by such a brief, this requirement is for the benefit of the trial court in its own review and evaluation of its determination of the case; hence, where the trial court ruled on a motion for new trial without requiring a brief, the brief requirement was waived; and the trial court's decision in the action is therefore an appealable judgment subject to review.
2. CONTRACTS — Installment Payments — Action Premature — Payments Not Due — Scope of Judgment — Only Delinquent Payments. Where action was brought to recover the delinquent installments of promissory note and that note contained no acceleration clause, plaintiff's suit was premature only as to those installments not yet due under the note, and since plaintiff did not attempt to amend his complaint during the pendency of the suit so as to incorporate any additional delinquencies arising after his complaint was filed, the plaintiff is entitled only to a judgment for those installments delinquent and unpaid at the time the complaint was filed.
3. Lack of Maturity — Defense Tried — Not Affirmatively Pled — Entitled to Consideration. In action on installment contract, lack of maturity is not one of the defenses specified as mandatory subjects of affirmative pleading under the rules of procedure, and it is apparent from the transcript that that defense was tried by the parties and considered by the court; hence, the defendant is entitled to consideration of that defense without having affirmatively pled it.
4. APPEAL AND ERROR — Contention — Not Listed — Motion for New Trial — Not Considered — Review. Since defendants' contention that trial court's findings were insufficient to comply with rules of procedure was not listed in motion for new trial, it will not be considered on review.
Appeal from the Superior Court of the City and County of Denver, Honorable Charles E. Bennett, Judge.
Kaufman, Greenwald Machol, P.C., Jack Greenwald, for plaintiff-appellee.
Almon Barsotti, Milton Berger, for defendant-appellant.
Following a trial to the court, plaintiff was awarded judgment for $1,700 for breach of contract. Defendant appeals. We remand for modification of the judgment and, as modified, affirm.
The agreement constituting the basis of plaintiffs' claim for relief was evidenced by a note in which the defendant promised to pay plaintiff $1,998 for services plaintiff had previously rendered to the defendant. Payments were scheduled as follows:
"In equal monthly installments beginning Sept. 1, 1971, $50.00 per month for the first two years, and $75.00 per month from then until the total fee has been paid."
Plaintiff's complaint was filed on September 27, 1973. At trial, the defendant called no witnesses and introduced no evidence. Unrebutted evidence presented by plaintiff showed that no payments had been made on this agreement. It was further shown that the sum delinquent and unpaid at the time of the filing of the complaint was $1,025, and at the time of trial, $1,625 was delinquent and unpaid.
[1] As a preliminary matter, we reject plaintiff's arguments that this appeal should be dismissed because defendant failed to file a memorandum brief with his motion for new trial. Although C.R.C.P. 59(a) requires a memorandum brief and it is within the discretion of the trial court to strike a motion for new trial unaccompanied by such a brief, Anlauf Lumber Co. v. West-Fir Studs, Inc., 35 Colo. App. 119, 531 P.2d 980, this requirement is for the benefit of the trial court in its own review and evaluation of its determination of the case. Where, as here, the trial court ruled on a motion for new trial without requiring a brief, the brief requirement was waived. The trial court's decision is therefore an appealable judgment subject to our review.
The principal question presented for our decision is whether the plaintiff's action was premature in its entirety, or at least as to those payments not yet delinquent, either at the time the action was filed or, alternately, at the time of trial. Defendant argues that no claim for relief had matured as the entire time for payment had not elapsed either at the time of the filing of the complaint or time of trial, while plaintiff maintains that the defendant's failure to make the installment payments caused the entire unpaid amount of the note to become due. We reject both contentions.
[2] Under the terms of this type of installment contract, a claim for relief matures with each delinquent installment. Where, as here, there was no acceleration clause, plaintiff's suit was premature only as to those installments not yet due under the contract. Maffett v. Emmons, 52 N.M. 115, 192 P.2d 557; Restatement of Contracts § 316. See also Restatement (Second) of Contracts § 268(3) (Tent. Draft No. 8, 1973). In this action, plaintiff did not attempt to amend his complaint during the pendency of the suit so as to incorporate any additional delinquencies arising after the complaint was filed. See Boydstun v. Pearson, 239 Miss. 479, 123 So.2d 621. Therefore, plaintiff is entitled only to a judgment for those installments delinquent and unpaid at the time the complaint was filed.
[3] Plaintiff contends, however, that even if lack of maturity constituted a defense to a portion of the note, it was necessary that such defense be affirmatively pled. Lack of maturity is not one of the defenses specified as mandatory subjects of affirmative pleading under C.R.C.P. 8(c), and it is apparent from the transcript that this issue was tried by the parties and fully considered by the trial court. Hence, the defendant is entitled to consideration of this defense.
[4] Finally, defendant contends that the trial court's findings were insufficient under C.R.C.P. 52. We do not consider this issue because it was not listed in defendant's motion for new trial. C.R.C.P. 59(f); Colorado Region-Sports Car Club, Inc., 35 Colo. App. 73, 532 P.2d 372.
We remand this case to the trial court for amendment of the judgment to award plaintiff the sum of $1,025, that being the amount of installments delinquent and unpaid at the time of the filing of this action, plus interest thereon and costs. Subject to this modification, the judgment is affirmed.
JUDGE COYTE and JUDGE BERMAN concur.