Opinion
Thomas B. Masterson, Denver, for plaintiffs in error.
Paul Snyder, Castle Rock, for defendants in error.
ENOCH, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties in this action appear here in the same order as in the trial court and will be referred to herein as plaintiffs and defendant or by name.
This action, which was tried to the court, arose out of a contract between plaintiffs and defendant, John Flierl, for the sale of 80 acres of land. The contract of sale included the following provision:
'After purchasers have paid the amount of $5,000 on the purchase price the seller agrees to release 5 acres of said property starting at any corner of said 80 acres.'
The trial court found that the plaintiffs were the first to breach the contract. It further found that the plaintiffs paid $5,000 and hence were entitled to a 5 acre trace of their choosing in accordance with the above provision. The trial court awarded the plaintiffs specific performance as to the 5 acres in lieu of damages.
There are no questions of law raised by this appeal.
Plaintiffs' first three alleged errors relate to questions of fact as to which party first breached the contract. There is ample evidence to support the trial court's finding that under the circumstances, the plaintiffs were the first to breach the contract by their withholding of payments. Where there is sufficient evidence to support the trial court's findings and judgment, they will not be disturbed by the reviewing court. Whatley v. Wood, 157 Colo. 552, 404 P.2d 537.
The fourth alleged error concerns a ten foot right-of-way which plaintiffs claim was imposed upon them without compensation. The attorney for plaintiffs apparently overlooked his discussion with the attorney for defendant in the presence of the court on hearing for the motion for new trial. At that time, it was stipulated and agreed that in order to solve the right-of-way problem that plaintiffs and defendant would each give ten feet to estabblish a twenty foot right-of-way for the benefit of and to be used by all parties concerned.
We find no merit in the alleged errors.
The judgment is affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.