Opinion
Rehearing Denied Dec. 21, 1971. Certiorari Denied Feb. 22, 1972. Not Selected for Official Publication.
E. L. Fundingsland, pro se; A. M. Alloway, Denver, for plaintiff in error.
James H. Howard, Denver, for defendant in error.
DWYER, Judge.
This case was transferred from the Supreme Court pursuant to statute.
The parties appear here in the reverse order of their trial court positions and will be referred to by their court designations or by name.
Plaintiff, Schmidt, sued the defendant, Fundingsland, to recover the sum of $17,000 which was allegedly due pursuant to the terms of a contract between the parties. The case was tried to the court which found, in substance, as follows:
Plaintiff had purchased an interest in certain gas wells from Sunrise International, a corporation of which the defendant was president and sole stockholder. Plaintiff had paid to Sunrise International a sum in excess of $15,000 as the purchase price for the interest in the gas wells. Plaintiff did not at any time thereafter receive instruments transferring legal title to the gas wells to himself, and the gas wells remained under the control of Sunrise International. Royalty payments were paid to the plaintiff until June 1964. At about this time, plaintiff became dissatisfied with the income from the wells, demanded his money back, and threatened to sue the defendant. It was under these circumstances that, in July 1964, following negotiations concerning the defendant's repurchasing of the wells, the defendant executed and delivered to the plaintiff the following handwritten document:
'William A. Schmidt:
'On or before Aug. 1, 1964, I will pay your (sic) $500.00, and $2000 eachs&severy month thereafter for six (6) months, aggregating a total of $17000 for all of your right titles&sinterest in gas wells known as #7, #9, #3,s&s#2 Sunico located in N. Mex.
'Dated this 22nd day of July AD 1964.
/s/ E L Fundingsland
The trial court concluded that the document, in and of itself, was ambiguous, but that from the facts and circumstances surrounding its execution, it constituted a non-negotiable promissory note, I.e., an unconditional promise on the part of the defendant to pay to the plaintiff the sum of $17,000.
Judgment was entered in favor of the plaintiff and against the defendant in the amount of $17,000 plus costs, and it is from such judgment that the defendant brings this appeal.
The defendant contended during the trial of this matter and contends here that the document in question simply evidenced an offer on his part to repurchase plaintiff's interest in the gas wells and that this offer was never accepted by the plaintiff.
An examination of the record discloses that there was a direct conflict in the testimony as to whether the defendant's 'offer' had in fact been accepted by the plaintiff. The defendant's testimony was that plaintiff had refused the offer because he wanted the entire $17,000 purchase price in cash. Plaintiff testified in substance that he had accepted the offer. This conflict in the testimony was resolved by the trial court against the defendant.
The trial court's finding that the document constituted an unconditional promise on the part of the defendant to pay to plaintiff the sum of $17,000 was tantamount to a finding that plaintiff had established the contract alleged in the complaint and that this contract arose from an offer by the defendant which was accepted by the plaintiff. Credibility of witnesses, sufficiency, probative effect and weight of evidence, and inferences and conclusions to be drawn therefrom are all within province of trial court whose determination will not be disturbed on review unless manifestly erroneous. Broncucia v. McGee, Colo., 475 P.2d 336.
Our conclusion that the trial court found that a valid contract existed between the parties also answers the defendant's argument that the findings and conclusions of the trial court were outside the scope of the pleadings and issues litigated by the parties. Our Supreme Court in Bridges v. Ingram, 122 Colo. 501, 223 P.2d 1051 held that:
'If sufficient notice concerning the transaction involved is afforded the adverse party, the theory of the pleader is not important. If, under the facts, the substantive law provided relief upon any 'theory,' the cause should proceed to judgment.'
The complaint alleged the existence of a contract between the parties, and a copy of the document involved here was attached to the complaint. Hence, the defendant had adequate notice of the factual basis of the claim and was afforded an opportunity to meet and defend against the factual issues presented. The court's resolution of the factual issues is supported by competent evidence and will not be disturbed upon review. Broncucia v. McGee, Supra.
Judgment affirmed.
COYTE and DUFFORD, JJ., concur.