Opinion
Stitt, Wittenbrink & Roan, P.C., R. J. Wittenbrink, Denver, for plaintiffs-appellants.
No appearance for defendant-appellee.
COYTE, Judge.
In this action arising from a contract for sale of a condominium, plaintiffs alleged that on October 10, 1972, they entered into a contract to purchase a condominium unit from Aspen Law Center, Inc. (defendant). The contract provided for a total purchase price of $45,000, $1,000 paid on execution of the contract, $3,500 within 30 days, and the balance at closing. Seller was to deliver a commitment for title insurance and a general warranty deed on November 30, 1972. Possession was to be delivered within one year of the date of the contract, and the funds paid on account of the agreement would be available to seller for expenditures in furtherance of the development of the condominium unit. One clause of the contract provided as follows:
'Time is of the essence hereof, and if any payment or any other condition hereof is not made, tendered, or performed by either the seller or purchaser as herein provided, then this contract, at the option of the party who is not in default, may be terminated by such party, in which case the non-defaulting party may recover such damages as may be proper. In the event of such default by the seller, and the purchaser elects to treat the contract as terminated, then all payments made hereon shall be returned to the purchaser. In the event of such default by the purchaser, and the seller elects to treat the contract as terminated, then all payments made hereunder shall be forfeited and retained on behalf of the seller. In the event, however, the non-defaulting party elects to treat this contract as being in full force and effect, then nothing herein shall be construed to prevent its specific performance.'
Plaintiffs did not make the $3,500 payment required to be made by November 10, 1972, and defendant did not tender the title insurance or deed on November 30, 1972. On December 8, 1972, plaintiffs paid $4,800 to defendant without any qualification attached. The record is silent as to how plaintiffs arrived at this figure. On December 21, 1972, plaintiffs notified defendant that they were rescinding the contract and demanding return of the money paid on the contract because of defendant's failure to close the transaction. On January 29, 1973, defendant wrote to plaintiffs inquiring as to their intention to close the contract. Thereafter, plaintiffs' attorneys wrote and verified the rescission of the contract and demanded refund of the money paid on the contract, and subsequently filed this suit for recovery of the down payment.
Defendant filed an answer which consisted of a general denial, but the pre-trial order listed as issues for trial: Waiver; whether there was a modification of the contract; did either party breach the contract; and whether rescission was a proper remedy. Plaintiffs filed a motion for summary judgment which the court denied. At the conclusion of a trial to the court in which neither party presented any testimony, but relied upon an agreed pre-trial order, exhibits, and admissions of the parties, the court dismissed plaintiffs' complaint and entered judgment for defendant. Plaintiffs appeal. We affirm the judgment.
The trial court correctly denied plaintiffs' motion for summary judgment. While no witnesses testified at the trial, the issues as set forth in the pre-trial order had to be determined. As stated in McKinley Construction Co. v. Dozier, 175 Colo. 397, 487 P.2d 1335, summary judgment should not be granted where there appears to be any controversy concerning the material facts.
In arriving at its rulings after trial to the court, it determined that plaintiffs were in default when they made the payment in December, but that the default of plaintiffs was waived by defendant in accepting the payment. It further determined that defendant was in default by its failure to deliver title commitment and deed at the time of payment, and that default was known to plaintiffs. Thus, it reasoned that plaintiffs, in making the payment when they knew defendant was in default, waived the default of defendant and the time of the essence provision of the contract. It then held that by reason of the waiver of the time of the essence provision of the contract, a reasonable time for performance by defendant was implied from the performance by the plaintiffs. It then found that a reasonable time would extend beyond December 21, 1972, and that plaintiffs' letter of December 21, 1972, rescinding the contract constituted an anticipatory breach of contract by plaintiffs and that at that time, December 21, 1972, they could not take advantage of defendant's default. See Shull v. Sexton, 154 Colo. 311, 390 P.2d 313.
Plaintiffs, in order to recover on their complaint, are relying on their right to rescind the contract. But, rescission of a contract, such as the contract involved here, may be granted only where the facts show, among other things, that there was a substantial breach, or that the injury caused by the breach is irreparable, or that damages would be inadequate, difficult or impossible to assess. Briggs v. Robinson, 82 Colo. 1, 256 P. 639. And, it is not a proper remedy for a mere variance from the terms of the contract. See Gregerson v. Weatherly, 160 Colo. 414, 417 P.2d 769.
Here, after the respective breaches of the parties have been waived, as found by the trial court, there was no evidence that defendant had thereafter breached the contract. Accordingly, rescission was an improper remedy, and the court properly dismissed plaintiffs' complaint.
Judgment affirmed.
RULAND and VAN CISE, JJ., concur.