Opinion
Oct. 8, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Kenneth D. Breneman, Fort Morgan, for plaintiffs-appellants.
John C. Penny, Burlington, for defendants-appellees.
STERNBERG, Judge.
Plaintiffs (purchasers) filed suit seeking to enforce an option to purchase a farm. The trial court, sitting without a jury, entered judgment for the defendants (sellers). Plaintiffs appeal. We affirm.
Purchasers formerly owned the farm that is the subject matter of this litigation. Sellers foreclosed a deed of trust which they held against the farm and purchased it at the foreclosure sale. Purchasers remained in possession. Both before and after the period of redemption had run, negotiations took place between the parties culminating in a meeting at a bank on March 30, 1973. At that time they signed two documents. The first was an Agreement for Sale and Purchase of Property (contract). It was a printed from, prepared by the banker, and provided for sale of the subject property for $25,081.98, payable $4,581.98 down and the balance within sixty days. The contract was contingent upon purchasers obtaining a loan from the Farmers Home Administration in the amount of $20,500 within the sixty day period.
The second document purports to be an Option to Purchase Real Property (option). It is a Farmers Home Administration form filled out in longhand by one of the sellers. It lists the total purchase price as $20,500, acknowledges receipt of $10 as the down payment, and specifies that it can be used by the purchasers only to obtain Federal Land Bank and FHA loans. There is testimony in the record underscoring the fact that the parties intended the option to be used only for purposes of procuring a loan. The option stated that it could be exercised at any time within two months by 'mailing, telegraphing or delivering in person a written notice of acceptance' to one of the sellers at his home address.
Purchasers paid $4,581.98 down pursuant to the terms of the contract. This money was held by the bank as informal escrow agent. However, on May 22, 1973, purchasers contacted the banker, showed him a letter from the Farmers Home Administration refusing the loan, and requested and received return of the down payment. Sellers did not learn of this until June.
Subsequently the purchasers obtained a loan commitment for $14,664. Using that commitment and a bank draft for $5,836, they attempted to exercise the option to purchase for $20,500 by delivering the commitment and draft to the office of an attorney who had represented sellers in the foreclosure proceedings.
Purchasers contended that they could disregard the contract, with its $25,081.98 purchase price, and enforce the option to buy the farm for $20,500. They also urge that delivery of the loan commitment and draft to the attorney served to exercise the option.
The trial court determined that the option and the contract were tied together, that the option was to be used solely for the purpose of obtaining a loan, and that the agreed purchase price was that contained in the contract, $25,081.98, not the $20,500 stated in the option. The court further found that the purchasers failed to sustain the burden of proof regarding acceptance of the option, that the attorney to whom the documents were delivered was not the sellers' agent, and that the purchasers did not tender the agreed purchase price.
The conclusions reached by the trial judge that the contract and the option must be read together and that the purchase price was $25,081.98 are based on competent evidence in the record and are determinative of the case. Byrne v. Stone & Birkle, Inc., 156 Colo. 445, 399 P.2d 940. The contract and the option were discussed and signed not only on the same day, but also at the same 'sitting.' The conclusion is inescapable that they are essential parts of the same transaction and must be construed together. Harty v. Hoerner, 170 Colo. 506, 463 P.2d 313. There never having been a tender of $25,081.98, the agreed upon purchase price, purchasers have no claim to the property.
Since resolution of the purchase price issue is dispositive of this matter, we need not consider other allegations of error.
Judgment affirmed.
RULAND and Van CISE, JJ., concur.