Opinion
Oct. 5, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 354
Jacob H. Chisen, Denver, for plaintiff in error.
Dolan & Dolan, David W. Holdsworth, Boulder, for defendants in error.
PIERCE, Judge.
This case was transferred from the Supreme Court pursuant to statute.
This is an appeal of an action for breach of contract for the sale of a mobile home. The parties appear in reverse of their order of appearance below and will be referred to by their trial court designations or by name.
The record indicates that in January of 1967, the parties entered into a contract whereby defendant Clinger agreed to sell a mobile home to plaintiffs for the sum of $6,000, payable in monthly installments. The agreement, drawn by defendant, contained the following provision:
'1. If the party of the second part (plaintiffs) shall make the payments and perform the covenants herein mentioned to be made and performed by the party of the second part, the party of the first part (defendant) will thereupon transfer and convey to the party of the second part the following described House trailer or Mobile Home or _ _ situate in the County of Larimer and Statel (sic) of Colorado: (description) free and clear of all liens and encumbrances, except taxes, and deliver a certificate or (sic) title therefore (sic) so showing. Said certificate of title shall be executed simultaneously with the execution of this agreement, and shall be delivered to party of second part when paid in full, as to the agreed price _ _.'
In October 1968, plaintiffs filed suit alleging in their complaint that they had 'made all payments provided for a in said contract up to February of 1968, at which time the plaintiffs through financing arrangements were able to pay the contract off, but that defendant would not furnish title to the trailer, which trailer would have been the security for plaintiffs' refinancing arrangements.' They further alleged that 'as a result of the defendant's failure to provide good and merchantable title to the trailer at that time, the plaintiffs were unable to complete plans for refinancing. * * *' The complaint contained no allegation that plaintiffs had tendered the remaining purchase price to defendant.
Upon trial to court, plaintiffs were awarded judgment in the amount of $1,400, plus costs, and defendant was ordered to return to plaintiff possession of an automobile, given in down payment on the contract, valued at $300. From the record and the trial court's findings of fact it is difficult for this Court to determine the legal theory upon which this case was tried or resolved, since the trial court failed to make any specific conclusions of law.
Upon first examination, the case appears to have been tried upon the theory that defendant breached her contract by failing to deliver merchantable title. However, although plaintiff Mr. Childers demanded that defendant produce merchantable title, there was neither evidence nor allegation that he tendered the remaining purchase price to defendant. In the absence of tender, defendant was under no duty to deliver title. C.R.S.1963, 155--2--511(1). Consequently, upon the established facts, the trial court's ruling must have been based upon plaintiffs' alternative theory that defendant failed to Execute title when the contract was executed, as required by the agreement, and that this failure was a breach of contract for which plaintiffs were entitled to damages.
Assuming this to be the theory upon which the case was decided, defendant contends not only that the damages awarded were grossly excessive, but also that the record fails to support any award of damages to plaintiffs. We agree. Upon reviewing the record, we find absolutely no evidence from which the trial court could have concluded that plaintiffs sustained any damage resulting from defendant's failure to execute title to the trailer home simultaneously with the execution of the original contract. In the absence of any evidence supporting the damages awarded, the judgment in this action cannot be sustained. See Brinker v. Union Pacific, Denver and Gulf Ry. Co., 11 Colo.App. 166, 55 P. 207.
Judgment reversed and the case remanded for dismissal of the complaint with prejudice.
DWYER and DUFFORD, JJ., concur.