Opinion
Jan. 25, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Beal & Wilson, Leonard Beal, Lakewood for plaintiffs-appellees.
Raymond Duitch, Colorado Springs, for defendant-appellant.
PIERCE, Judge.
This is an appeal of an action for breach of contract. In summary, the record indicates that on October 27, 1969, plaintiffs and defendant executed a written contract for the purchase and sale of a mobile home. A deposit of $2,000, given by plaintiffs to defendant on October 17, 1969, was credited to the contract price. By his own admission, defendant was unable to perform the terms of the contract by delivering a mobile home which would comply with the specifications stated in the contract. Plaintiffs demanded the return of their deposit, but defendant refused and suit was brought. Upon trial to court, judgment was entered in favor of plaintiffs on all issues and it was determined that plaintiffs were entitled to a refund of their $2,000 deposit, plus costs and interest. It is from this judgment that defendant appeals. Defendant first contends that the judgment was unsupported by the evidence. The crux of defendant's argument is that there was insufficient evidence to show that the $2,000 deposit made on October 17, 1969 was incorporated into or related to the October 27th contract. The trial court, in its findings of fact and conclusions of law, specifically found, however, that 'plaintiffs made a deposit of $2,000 on October 17, 1969 which was incorporated into the contract dated October 27, 1969 as a deposit credit.' This finding is fully supported by direct testimony, related exhibits, and inferences legitimately drawn therefrom, and will not be disturbed on review. Whatley v. Wood, 157 Colo. 552, 404 P.2d 537.
Defendant's contention that the case was tried on issues other than those set forth in the pretrial order is unsupported by the record. Defendant's further assignments of error do not merit discussion.
Judgment affirmed.
COYTE and DWYER, JJ., concur.