From Casetext: Smarter Legal Research

Hubert v. Cowan

Court of Appeals of Colorado, Second Division
Sep 26, 1972
501 P.2d 1352 (Colo. App. 1972)

Opinion

         Sept. 26, 1972.

         Editorial Note:

         This case has been marked 'not for publication' by the court.

Page 1353

         Wells & Snydal, Max Snydal, Fort Morgan, for plaintiff-appellants.


         Arnold, Ross & Leh, Baxter W. Arnold, Sterling, for defendant-appellee.

         PIERCE, Judge.

         In 1959, the parties to this action, Hubert (a plaintiff) and Cowan (defendant) organized the Five-Three Furniture Co., a corporation (also a plaintiff), to conduct a retail furniture business in Fort Morgan, Colorado. In 1962, the corporation opened an outlet for furniture sales in Sterling, Colorado. In May 1968, plaintiff Hubert and defendant agreed to separate the two operations, plaintiffs taking the Fort Morgan store and defendant taking the Sterling store. To effect this transfer of ownership, the parties drafted a memorandum agreement on May 1, 1968, which, by its terms, provided that the agreement was to be 'put in writing by an attorney and then signed' by the parties when it met their approval. This was never done.

         The agreement provided, in pertinent part, that defendant was to transfer his stock in the Five-Three Co. and to pay $2,615.04 to the corporation. It is undisputed that defendant transferred his stock and paid this amount to the corporation. The agreement further provided that, if he and Hubert could agree on a price, defendant was to purchase a truck from the corporation; that the lease on the Sterling store was to be assigned by the corporation to defendant; and that defendant was, 'at a minimum,' to guarantee certain notes of the Five-Three Co.

         Hubert and the corporation brought this action, alleging that defendant had not complied with the terms of this agreement. Specifically, plaintiffs alleged that, in addition to the $2,615.04 already paid, defendant still owed state, federal and social security taxes which the corporation was obligated to pay at the date of severance. Plaintiff also sought recovery for other miscellaneous items, including payment for the above mentioned pickup truck. Finally, plaintiff contended that defendant had become principal obligor of a note of the corporation by the terms of the above agreement. The trial court dismissed the action, ruling that there was no contract with regard to these items. We affirm.

          There is no reference to the taxes and miscellaneous items mentioned above in the memorandum agreement. No tstimony as to any oral agreement between the parties was presented. Nor was a price agreed upon for the truck. Thus, even if the above agreement could be considered a contract, these amounts could not be appended by either the trial court or this court, since a court cannot write a contract for the parties or change the terms of an agreement when it is clear and unambiguous. Alexander Dawson Inc. v. Fling, 155 Colo. 599, 396 P.2d 599. Yamin v. Levine, 120 Colo. 35, 206 P.2d 596. We conclude that the trial court was correct in ruling that there was no contract with regard to these items.

          As a second claim for relief, plaintiffs contend that defendant was to assume the outstanding liabilities of the corporation mentioned in the memorandum agreement, which included the note. The language of the agreement provided, however, that defendant was to guarantee the note in question, not assume it. Again, it would be beyond this court's power to change the terms of this memorandum. Dawson, supra. Plaintiff contend, though, that this court should realize that this agreement was drafted by laymen, and that the true intent of the parties should be extracted from all the surrounding circumstances. However, the court, on competent evidence, ruled that no such intent was proved. It is for the trier of fact to weigh the evidence offered and determine the credibility of the witnesses. We will not disturb its determination on appeal when supported by the evidence. State of Colo v. Webb, 104 Colo. 446, 92 P.2d 328. Furthermore, defendant's signature does not appear on the note, except as corporate secretary, and the principal obligor on the note is the Five-Three Co., with plaintiff Hubert as guarantor.

          We conclude, therefore, that without defendant's signature on the note, and without a written agreement for assumption of the obligation, the court was correct when it found that defendant was not responsible on the note.

          Finally, when plaintiffs sued on the express contract, their claim for relief was legal in nature. They now ask this court to view the entire proceeding as equitable and, thus, apply equitable axioms to find a contract, thereby allowing plaintiff's action to succeed. It is elementary that equity will not lie where there is an adequate legal remedy. Operative Service Corp. v. McIntyre Pump Co., 85 Colo. 519, 277 P. 773. The existence of a contract was a necessary prerequisite to the granting of such relief. Their inability to prove the facts alleged, not the lack of a remedy at law, prevented recovery by plaintiffs. This does not establish a right to an equitable remedy.

         Judgment affirmed.

         DWYER and ENOCH, JJ., concur.


Summaries of

Hubert v. Cowan

Court of Appeals of Colorado, Second Division
Sep 26, 1972
501 P.2d 1352 (Colo. App. 1972)
Case details for

Hubert v. Cowan

Case Details

Full title:Hubert v. Cowan

Court:Court of Appeals of Colorado, Second Division

Date published: Sep 26, 1972

Citations

501 P.2d 1352 (Colo. App. 1972)