Opinion
Rehearing Denied Feb. 16, 1971.
Page 1006
Mellman, Mellman & Thorn, P.C., Isaac Mellman, Denver, for defendant-appellant.
No appearance for plaintiffs-appellees.
COYTE, Judge.
The appellant, James Ellis, d/b/a The Outlaw Bar, shall be referred to as the defendant, and the appellees as plaintiffs in this opinion.
Basically this action involves a contract in which plaintiffs agreed to furnish coinoperated amusement equipment to defendant, to be used in defendant's place of business. Each party to the contract was to receive fifty percent of the profits. Prior to the date plaintiffs were to place their equipment in defendant's establishment, defendant contracted with another company to provide similar equipment and refused to accept the equipment of plaintiff.
In the trial court, plaintiffs were successful in enforcing their rights under the contract requiring defendant to accept plaintiffs' coin-operated amusement equipment in his establishment and in ordering defendant to refrain from using another company's equipment in lieu of plaintiffs' equipment.
Defendant's sole contention on review is that there is no mutuality of obligation and that the contract is therefore void. Mutuality of obligation goes to the consideration or duties and obligations of the parties under a contract. Where only one party to the contract is required to perform or provide consideration, then mutuality of obligation is lacking and the contract is not considered binding. Henry Bosch Co. v. Guiry Bros. Wall Paper Co., 99 Colo. 379, 62 P.2d 1325.
Under the contract plaintiff has the power to modify, repair or replace equipment to be located in defendant's establishment in accordance with plaintiffs' established procedures.
Defendant asserts that by these terms plaintiffs may substitute poor, defective equipment in order to favor another establishment in the area, or may reduce the equipment in defendant's establishment to a less than adequate amount, or may refuse to maintain the equipment placed in the establishment; and that therefore, there is no mutuality in the contract.
Under defendant's interpretation of this contract, plaintiffs would not be bound by the basic element of good faith in their dealings. Such an interpretation does not necessarily flow from the mere fact that plaintiffs have discretion as to the means of performing their part of the contract.
In construing a contract, the court will not attempt to interpret the terms in such a manner as to render it invalid, when, by a fair and reasonable interpretation of these same provisions, the contract may be construed as valid and binding. Tallman v. Smith, 112 Colo. 217, 148 P.2d 581. If the contract is susceptible of two or more interpretations, then that interpretation which would lead to a fair and reasonable result for both parties will be the one followed. Hutchinson v. Elder, 140 Colo. 379, 344 P.2d 1090.
It is further argued by defendant that while plaintiffs have discretion as to performance, the defendant does not have this same power and therefore mutuality is lacking.
In order for a contract to be enforceable it is not necessary that each party to the contract possess the same rights, powers and privileges under its terms. Sedalia Land Co. v. Robinson Brick & Tile Co., Colo.App., 475 P.2d 351. In O'Done v. Shulman, 124 Colo. 445, 238 P.2d 1117, a case extensively relied upon by defendant, the Supreme Court held that mutuality was lacking rendering a similar contract void in a situation where a vending machine company was free to remove the machines at will, while the owner of the establishment had no similar right to demand removal. In clear distinction to O'Done, supra, the contract in the instant case provides for a termination by either party only at the expiration of a five-year term, which means that neither party has the power to unilaterally abrogate their duties under this contract. Therefore, in the case at bar, we do not find the O'Done case controlling on this point.
Although the duties and obligations are different here, the contract is valid since there is a mutual duty on the part of each to perform.
It is the function of this court to determine whether or not the defendant might have acquired better terms for himself, or to determine whether or not this is the best contract which might have been written under the circumstances. It is sufficient if there is consideration flowing between the parties and if each party has mutually and voluntarily assented to the terms of the contract. These elements are present in this particular contract and we will not declare it void merely because the defendant now wishes to escape his liability under its provisions.
Judgment affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.