Opinion
Feb. 25, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 774
Michael J. Tauger, Samuel Brown, Denver, for plaintiff-appellant.
John A. Kintzele, Denver, for defendants-appellees.
SILVERSTEIN, Chief Judge.
Buyer brought this action against Sellers for specific performance of a 'Receipt and Option Contract,' or, in the alternative, for the return of Buyer's $200 deposit. The Sellers counterclaimed, asserting the right to retain the deposit as liquidated damages. Following trial to the court, judgment was entered denying specific performance and awarding the deposit to the Sellers. We affirm the denial of specific performance and reverse as to the retention of the deposit by Sellers.
The following facts are undisputed. On April 9, 1972, the parties entered into a form 'Receipt and Option Contract' covering Sellers' property in Denver. Buyer gave Sellers a check for $200, and the balance of $20,550 was to be paid in certified funds at the closing. The contract was prepared by Buyer's attorney. It provided that Sellers would furnish Buyer with an abstract or title insurance commitment on or before May 5, 1972; that, subject to payment and Buyer's compliance with other terms, Sellers would execute and deliver a general warranty deed to Buyer on May 12, 1972; and that possession would be delivered on May 31, 1972. The following typewritten clause was inserted: 'This contract is contingent upon Purchaser receiving a loan for 90% Of the purchase price at an interest rate not in excess of 8% Per annum.' In addition, the contract contained the following printed clause:
'Time is of the essence hereof, and if any payment or any other condition hereof is not made, tendered, or performed by purchaser as herein provided, then this contract shall be null and void and of no effect, and both parties hereto released from all obligations hereunder, and all payments made hereon shall be retained on behalf of the seller, as liquidated damages.'
Neither Buyer nor Sellers made timely performance of any of their commitments. The Buyer applied for a mortgage loan in late April 1972, and an appraiser from a lending institution inspected the property on May 10. The Sellers did not order the title commitment until May 5, and it was not delivered to the Buyer's lender until May 15. There is no dispute that as of May 12, 1972, no title insurance commitment had been furnished, no loan for 90% Of the purchase price had been obtained, and the balance of the purchase price had not been paid or tendered. On or about May 15, Sellers told Buyer's attorney that they had decided not to sell the property.
I.
Generally, a full and proper tender of the purchase price to the vendor is an essential condition precedent to a suit for specific performance. Berdineau v. Schock, 21 Colo.App. 198, 121 P. 146; See Thurmon v. Skipton, 157 Colo. 423, 403 P.2d 211.
Buyer contends that he was entitled to specific performance of the receipt and option contract notwithstanding his own failure to pay or tender the balance of the purchase price on May 12, arguing that he was not required to make useless tender of performance once the Sellers had failed to provide the title commitment when due. See Poznik v. Urton & Co., 30 Colo.App. 475, 496 P.2d 1073, aff'd, 181 Colo. 15, 506 P.2d 741. However, such an excuse will preserve the buyer's right to specific performance only where the buyer gives unequivocal notice of his unconditional commitment to be bound by the contract thus created. See Coppom v. Humphreys, 171 Colo. 410, 467 P.2d 816; Ruark v. Peterson, 30 Colo.App. 162, 491 P.2d 75; Howard v. Interstate Development Co., 29 Colo.App. 287, 483 P.2d 1366; Dufford Options, Orphans of the Law, 50 Den.L.J. 283.
In the case before us, the trial court found no evidence that Buyer ever tendered or offered to tneder to Sellers certified funds in the amount of $20,550. Buyer refers to no evidence, and our review of the record discloses none, to show that Buyer unconditionally committed himself to be bound to the contract as of May 12. Although there was some testimony that Buyer had access to sufficient funds to enable him to pay the $20,550 if he had chosen to do so on May 12, there is nothing in the record to show that he attempted to utilize these funds for this purpose or that he intended to waive the condition that the contract was contingent upon the 90% Loan at 8% Interest. Buyer testified that he received a written commitment for such a loan from the lender on May 24. Thus, Poznik, supra, is distinguishable because, in that case, the buyer's attorney had in his possession certified funds available to be delivered to seller when good title was shown.
The trial court was correct in determining that, under these circumstances, the Buyer was not entitled to specific performance; therefore, this portion of the judgment is affirmed.
II.
The Buyer next contends that the contract did not entitle Sellers to retain his $200 deposit as liquidated damages since the Sellers themselves were in default for failure to furnish evidence of title by May 5. We agree.
One who is himself in default may not assert a forfeiture. Linch v. Game & Fish Commission, 124 Colo. 79, 234 P.2d 611. In Allison v. Schuber, 74 Colo. 545, 223 P. 53, the court affirmed a buyer's judgment for his $500 deposit where the seller had failed to furnish an abstract prior to the date the next payment was due. Where a vendor fails to tender merchantable title when due, the vendee is entitled to a refund of the payments previously made. See Mitchell v. Evans, 150 Colo. 568, 375 P.2d 101; Heaton v. Nelson, 69 Colo. 320, 194 P. 614; H. Fusilier, The Law of Real Estate Practice 391.
The portion of the judgment awarding Sellers the $200 as liquidated damages is reversed; the remainder of the judgment is affirmed.
BERMAN and KELLY, JJ., concur.