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Carmel Enterprises, Inc. v. Noble

Court of Appeals of Colorado, Second Division
Nov 23, 1971
491 P.2d 92 (Colo. App. 1971)

Opinion

         Nov. 23, 1971.

         Editorial Note:

         This case has been marked 'not for publication' by the court.

         Donald E. La Mora, David C. Mize, Colorado Springs, for plaintiff in error.


         Quigley, Wilder & Palermo, P.C., Richard V. Hall, Colorado Springs, for defendants in error.

         DWYER, Judge.

         This case was transferred from the Supreme Court pursuant to statute. The parties will be referred to as they appeared in the trial court where plaintiff in error was the defendant and the defendants in error were plaintiffs.

         This case involves a lease agreement executed by the plaintiffs as tenants and the defendant as landlord. At the time the lease agreement was executed, the leased premises were under construction as part of a new shopping center, and there was a provision in the lease agreement to the effect that if the leased premises were not ready for occupancy by October 15, 1967, the tenants could cancel the lease agreement and recover their advance rental payments. Plaintiffs alleged in their complaint that the leased premises were not ready for occupancy by such date and sought recovery of their advance rental payments. By way of answer, the defendant alleged that the leased premises were ready for occupancy on October 15, 1967, and filed a counterclaim for damages for breach of the lease agreement. Trial was to a jury which returned a verdict in favor of the plaintiffs, and the defendant has appealed.

         The defendant's principal contentions are that the jury's verdict was not supported by the evidence and that the trial court should have granted its motions for a directed verdict or judgment notwithstanding the verdict.

          The record discloses that the evidence presented in this case was in direct conflict with respect to the factual issues involved and particularly so with respect to the principal question of whether the leased premises were ready for occupancy by October 15, 1967, within the meaning of the lease agreement. Such being the case, upon appellate review, the jury's verdict, which has support in the evidence, must be sustained. J & K Construction Co. v. Molton, 154 Colo. 214, 390 P.2d 68.

          The defendant also contends that the trial court erred in giving an 'oral instruction' to the jury during the presentation of the evidence in the case. As we view the record, the 'oral instruction' complained of here was simply a cautionary remark directing the jury to the real issues of the case. The trial court did give full and complete written instructions to the jury at the close of the evidence as required by R.C.P. Colo. 51. In any event, as plaintiff's counsel asserts, no objection to the 'oral instruction' was made during the trial of this matter, and, consequently, this assignment of error is not properly presented for appellate review. Thompson v. Davis, 117 Colo. 82, 184 P.2d 133; Aslan v. Parker Realty Co., 78 Colo. 235, 242 P. 45.

         The judgment is affirmed.

         ENOCH and DUFFORD, JJ., concur.


Summaries of

Carmel Enterprises, Inc. v. Noble

Court of Appeals of Colorado, Second Division
Nov 23, 1971
491 P.2d 92 (Colo. App. 1971)
Case details for

Carmel Enterprises, Inc. v. Noble

Case Details

Full title:Carmel Enterprises, Inc. v. Noble

Court:Court of Appeals of Colorado, Second Division

Date published: Nov 23, 1971

Citations

491 P.2d 92 (Colo. App. 1971)