Opinion
Nov. 26, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
John D. Ryan, Denver, for defendant-appellee.
Holley, Boatright & Villano, Michael C. Villano, Wheat Ridge, for defendants-appellants.
Page 951
COYTE, Judge.
Plaintiff, Gordon Neon Company, filed suit against all defendants to recover rental due under a sign rental agreement between plaintiff and defendant Crim, claiming that defendants Tabor Associates were liable for payment by virtue of an agreement between Crim and Tabor Associates under which plaintiff was a third-party beneficiary. In addition, Crim asserted a cross-claim against Tabor Associates claiming that they had agreed to pay amounts that became due on said sign lease and asked for indemnification from Tabor Associates for any judgment rendered in favor of plaintiff against Crim. Tabor Associates answered denying any liability by reason of the sign lease.
Immediately before trial, plaintiff and Crim entered into a compromise settlement of plaintiff's claim against defendants wherein Crim paid plaintiff $4,500. Tabor Associates were not a party to this compromise settlement. The case then proceeded to trial on Crim's cross-claim against Tabor Associates, at the conclusion of which the court entered judgment in favor of Crim for $4,500. Tabor Associates appeal contending that the evidence was insufficient to support the judgment and that there was no enforceable agreement between the parties. We affirm.
The evidence revealed that Crim had leased the Tabor Theatre to Tabor Associates for a five-year period. The lease agreement provided that Tabor Associates would 'assume the payment of the equipment contract and marquee sign contract from which I (Crim) will have no further obligation.' Crim testified that he had entered into the contract for payment of rent on the theater marquee sign and had settled his obligation under the contract for $4,500.
Objection was made to the introduction of the contract between Gordon Neon Company and Crim on the basis that a proper foundation had not been laid and that the agreement was hearsay. Crim was a party to the contract. This was the rental contract under which Gordon Neon Company had filed suit and was the contract upon which Crim's settlement with plaintiff was based. The agreement, having been properly identified, was not hearsay, and was properly admitted into evidence.
Crim also testified that he had entered into a contract with Tabor Associates wherein the partnership had agreed to assume the obligation of paying for the sign rental. A copy of this contract was entered into evidence over objection by Tabor Associates. They contended that one partner, Near, signed the agreement on behalf of the partnership, contingent upon the approval of Dick, the other partnership member, but that Dick had never approved the contract and that, in any event, it was ambiguous and parol evidence should have been admitted in order to explain the terms of the contract.
The contract by which Tabor Associates assumed the sign rental payments was clear and unambiguous and the court properly denied parol evidence to explain its terms. There was a disagreement as to whether the agreement was effective, but no basis for a dispute as to the meaning of the contract.
The contract was signed by Near acting within the scope of his authority as a partner. Crim denied receipt of a signed copy of the agreement with any restrictions attached and denied that the contract had to have Dick's signature on the agreement before it was to become effective.
As a partner of Tabor Associates, Near had authority to bind the partnership on the Crim obligation. C.R.S.1963, 104--1--9. Whether the agreement was contingent on Dick's signature was a factual issue to be decided by the trial court and when made on conflicting evidence is binding on us. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453.
Judgment affirmed.
PIERCE and SMITH, JJ., concur.