Opinion
Jan. 3, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 20
Holley, Boatright & Villano, Roger D. Witt, Wheat Ridge, for plaintiffs-appellees.
Swenson & Pickens, Howard J. Swenson, Lakewood, for defendant-appellant.
COYTE, Judge.
Plaintiffs sold their wrought iron business to defendant by initial agreement dated September 16, 1964, and final agreement for sale dated July 29, 1965, which final agreement provides in part as follows:
'2. The price reflecting the reasonable market value of such materials and equipment is to be arrived at by and between the parties. This amount is to be reduced to a mortgage and promissory note and is to be paid from the profits of said business commencing on or before six months from transfer and to continue at a like sum agreed upon by and between the parties each and every month thereafter until same is fully and completely paid from the profits of the company.
3. That the Sellers are to retain five percent (5%) of said business and shall be paid 5% From the gross collections from sale of products of the business every other month, commencing June 1, 1965.
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6. The Sellers agree to accept for their 5% Retaining interest in said business, the sum of $5,000.00. If at any time the said $5,000.00 is tendered to the Sellers, they must accept same and from that point forward will have no further right, title or interest in and to The Superior Metal Works.' Defendant paid the note which was secured by the mortgage on the property. He also paid plaintiffs approximately $3,800 on the 5% For gross sales, but, when he learned that plaintiff was not crediting these payments to the $5,000 option price as referred to in clause 6 above, he ceased making further payments.
Plaintiffs filed an action seeking an accounting and judgment for amount due on the 5% Interest. After a hearing the court ordered an accounting by defendant as to his gross sales and, after the accounting, entered judgment against defendant for $6,894.12, which amount represented 5% Of the gross sales by defendant to time of accounting less $3,800 previously paid.
Defendant's principal contention is that the 5% Paid on the gross sales should be credited to the $5,000 purchase price, and that since the business had been sold there was no further duty to account. We disagree, and affirm.
The trial court did not accept defendant's proposed construction of the contract, nor do we. Clause 3 clearly expresses plaintiffs' intent to retain a 5% Ownership of the business and to receive 5% Of the gross income. Clause 6 states the plaintiffs' agreement to accept tender of the sum of $5,000 for their 5% Retained interest in the business. Although in writing the agreement defendant could easily have specified that the 5% Payments be applied toward the $5,000 purchase price, no mention of any such specification appears in the agreement, nor is the 5% Retained ownership ever referred to as collateral or security. On the contrary, the clauses, written in plain language without ambiguity, are separate and independent provisions. When the language of a contract is plain, clear and unambiguous, the court cannot by judicial construction rewrite the contract but must enforce it as written. American Industrial Leasing Co. v. Costello, 160 Colo. 588, 418 P.2d 881; Soderberg v. Verdos, 158 Colo. 221, 405 P.2d 946; Dawson v. Fling, 155 Colo. 599, 396 P.2d 599. Any doubts which defendant may now raise as to the proper construction of the agreement are of no avail since the contract will be construed most strongly against him as being the party who drafted it. Christmas v. Cooley, 158 Colo. 297, 406 P.2d 333.
The agreement for sale was made binding upon the heirs, successors and assigns of the parties. The trial court found that the defendant incorporated Hilltop Iron, Inc., and sold all the assets of the Superior Metal Works to said corporation. The court ordered that the defendant account for the gross collections from the sale of products for the period of June 1, 1965, to the present and further ordered that the plaintiff shall retain a 5% Interest in the Superior Metal Works, its successors or assigns, until they are paid the sum of $5,000 pursuant to Clause 6.
When there is sufficient competent evidence which, when viewed most favorably to the prevailing party, supports the findings of the trial court, such findings will not be disturbed on review. Gleason v. Phillips, 172 Colo. 66, 470 P.2d 46; Whatley v. Wood, 157 Colo. 552, 404 P.2d 537. The defendant testified that Hilltop Iron, Inc., had acquired the assets of Superior Metal Works and received customers of the former business. The corporate roles of the defendant and his wife were indicative of his continuing control over the business. The court was entitled also to consider the demeanor and credibility of the witnesses. The evidence, viewed in the light most favorable to the plaintiff, is sufficient to support the finding of the trial court that Hilltop Iron, Inc., was a successor to Superior Metal Works, therefore entitling plaintiff to an accounting of the gross collections of the corporation as well as a continuing 5% Interest in said corporation.
We have considered the other alleged errors asserted by defendant and find them to be without merit.
Judgment affirmed.
DWYER and SMITH, JJ., concur.