Opinion
May 8, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
George Aucoin, Lakewood, Kenneth Breneman, Fort Morgan, for plaintiffs-appellees.
Johnson, McLachlan & Tempel, George McLachlan, Lamar, for defendant-appellant.
COYTE, Judge.
This is an action by plaintiffs to recover the purchase price on a contract for the sale of 1400 head of 'merchantable' sheep. The terms of this written contract, as entered into on May 9, 1966, provided, in pertinent part, that: 'Sellers (plaintiffs) hereby sell to Buyer (defendant) and Buyer hereby purchases and agrees to pay for, 1400 head of merchantable two-year-old ewes for delivery October 15, 1966 at Avon, Colorado.' The purchase price was $32 per head. Defendant made a down payment of $2,800 on the contract, but, after examining the sheep in September 1966, he refused to accept delivery of the sheep or to pay the balance of the contract price, claiming that the sheep were not merchantable.
After an extended trial, the court found, as follows: That ownership of the 1400 two-year-old ewes passed to defendant on May 9, 1966; that 100 head of the sheep were killed in a train collision; that plaintiffs were not entitled to wages as a result of caring for and maintaining said ewes; that 'plaintiffs are entitled to a reasonable profit to be made upon the sale of said ewes at the agreed price as stipulated in the contract;' and that plaintiffs were entitled to judgment against defendant 'for damages' in the amount of $14,843.05. Judgment for this amount was so entered.
Defendant appeals, maintaining that the court erred in finding that title to the sheep passed to defendant on May 9, 1966, and that the court erred in its determination of the amount of damages. We reverse the judgment of the trial court.
The question as to when title to the sheep passed is determinable by the construction of the specific written contract, which was complete in its terms. We therefore are not bound by the trial court's determination and may resolve the matter upon review. Helmericks v. Hotter, 30 Colo.App. 242, 492 P.2d 85. Since this transaction occurred prior to the effective date of the Uniform Commercial Code, the Uniform Sales Act, C.R.S.1963, 121--1--1 et seq., controls this transaction.
C.R.S.1963, 121--1--19, provides in part:
'Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property (title) in the goods is to pass to the buyer.
'Rule 5. If the contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon.'
Under the contract between the parties, delivery was to be at Avon, Colorado, on October 15, 1966, and, accordingly, title to the ewes would not pass until that date at Avon, Colorado.
Since title would pass upon delivery, the question as to which of the parties breached the contract depends upon the marketability of the sheep on the date of that scheduled delivery. If they were marketable on that date, seller is entitled to damages as set forth in C.R.S.1963, 121--1--63 and 64. However, if the sheep were not marketable, the buyer would not be liable for the balance of the price, and he would be entitled to a return of his down payment. C.R.S.1963, 121--1--69. See Thach v. Durham, 120 Colo. 253, 208 P.2d 1159. Thus, a finding on the issue of marketability of the sheep is necessary for the proper disposition of this case. The court, however, made no finding on this issue, and the matter must be remanded for such determination to be made.
It is impossible for this court to review the judgment as to damages awarded by the trial court because there are no findings which enable us to determine the evidence considered by the trial court in arriving at its judgment. Murray v. Rock, 147 Colo. 561, 364 P.2d 393. However, since this issue is moot, we will not further address ourselves to it.
Since the judge who heard the case is deceased, the judgment is reversed and the cause remanded for a new trial.
SILVERSTEIN, C.J., and DWYER, J., concur.