Opinion
April 8, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 327
Simon, Eason, Hoyt & Malone, P.C., William K. Malone, Englewood, for plaintiff-appellant.
Lutz & Gilbert, Harold D. Lutz, Arvada, for defendant-appellee.
BERMAN, Judge.
Plaintiff, Richard E. Kelley, (Kelley), appeals from the trial court's reformation of an option contract entered into with the defendant, Silver State Savings and Loan Association, (Silver State). We reverse.
To settle certain then pending deficiency proceedings arising from a previous foreclosure action by Silver State against Kelley, the parties, on March 9, 1970, agreed as follows: That judgment be entered against Kelley in the amount of some $71,500, that Silver State would not enforce that judgment provided Kelley took certain actions which included the periodic payment of certain specified sums of money and the purchase of certain specified lots located in 'Green Mountain Filing No. 5,' located in Jefferson County, and that upon Kelley's performance of those actions, Silver State would enter a satisfaction of the deficiency judgment.
After this agreement was executed, Silver State requested that a quit claim deed to a one-foot strip on each side of a road in the general area be given it by Kelley. Upon Kelley's refusal, Silver State refused to file the agreement with the court. As a result, further negotiations were begun. As a result of these negotiations and specifically as part of this 'overall settlement,' an 'Option' was executed on May 5, 1970, whereby in consideration of Kelley's delivery of a deed for a 'street right-of-way' through the property in controversy, which would provide access to lots owned by Silver State, Silver State granted to Kelley an option to purchase additional property described by metes and bounds for a total price of $32,000. It was not until this 'Option' was executed that Silver State filed the previous agreement with the court.
The March 1970 agreement required Kelley to make periodic payments and lot purchases throughout 1970 amounting to in excess of $71,000, and there is no contention that Kelley did not faithfully make these payments on or before the time specified.
In March 1971, having previously delivered his deed to Silver State pursuant to the 'Option,' Kelley tendered his certified check for $32,000 to Silver State and attempted to exercise the option to certain lands covered by the legal description in the May 1970 option. Silver State refused to accept the check, claiming that the legal description in the option, which included both 'platted' and 'unplatted' lands, was in error and that the option was to apply to only the unplatted land. Kelley commenced this suit to demand specific performance of the option, or, in the alternative, damages. Silver State counterclaimed for reformation of the option contract.
The trial court denied Kelley's requested relief and entered a judgment reforming the option contract to include only the unplatted land. Kelley appeals from that judgment. We reverse.
The undisputed evidence reveals that Russ, president of Silver State, knew in July or August of 1970 that the land description in the 'Option' was wrong, or, as he put it, 'I believe it was sometime in July or August, about that time that we realized that the legal was incorrect.' With this knowledge, he accepted from Kelley the payments due under the agreement in September and December of 1970 for a total of $27,316.97, and on March 3, 1971, he accepted, without qualification or objection, the tendered payment of the balance of the amount stipulated in the March 1970 agreement. At no time did he advise Kelley that the payments were being accepted only upon the reservation that Silver State did not intend to convey and platted land under the 'Option.'
Based upon these facts, Kelley contends that Silver State either acquiesced in the contract as drawn, ratified it, waived any alleged wrongful description, or is estopped from now claiming that it is entitled to a reformation of the 'Option' agreement to reflect that it included only unplatted land. We agree.
While the issues inherent in these contentions were not raised by the pleadings, they were before the court at the trial, C.R.C.P. 15(b), and they were presented to the court in connection with Kelley's motion for a new trial, C.R.C.P. 59(f). Thus, although the trial court made no findings on these issues, they are properly before us for our determination. See Fenimore v. Stauder, Colo.App., 527 P.2d 943.
While, as a general rule, waiver is usually a question of fact, See Fenimore v. Stauder, Supra, it becomes a question of law where, as here, the facts are uncontested and clearly established. Tisdel v. Central Savings Bank and Trust Co., 90 Colo. 114, 6 P.2d 912; Widman v. Barry, 63 Colo. 427, 168 P. 31. Se also 28 Am.Jur.2d Estoppel and Waiver s 174. We hold that Silver State waived any right it had to reformation.
Here, Silver State could not 'both affirm and disaffirm (its) contract or affirm it in part and disaffirm it in part,' Tayyara v. Stetson, 30 Colo.App. 250, 492 P.2d 73; See Gerbaz v. Hulsey, 132 Colo. 359, 288 P.2d 357; 'otherwise, one might . . . speculate upon the advantages or disadvantages of an agreement, receive its benefits, and thereafter repudiate all its obligations.' Tisdel v. Central Savings Bank and Trust Co., Supra.
Furthermore, 'waiver may be shown by a course of conduct signifying a purpose not to stand on a right, one leading, by a reasonable inference, to the conclusion that the right in question (if it exists) will not be insisted upon. . . .' Swedish-American Bank v. Koebernick, 136 Wis. 473, 117 N.W. 1020. Hence, we hold that by virtue of its continuing to accept substantial payments from Kelley under the first part of the settlement agreement, after it knew of the discrepancy in the legal description of the option, which was specifically made a part of the overall settlement, Silver State is now barred from seeking reformation because of such alleged mutual mistake. Bullfrog Marina, Inc. v. Lentz, 28 Utah 2d 261, 501 P.2d 266; West v. Prairie State Bank, 200 Kan. 263, 436 P.2d 402; and 4 Williston on Contracts ss 623 and 628 (3d ed.); and See Las Animas Consolidated Canal Co. v. Hinderlider, 100 Colo. 508, 68 P.2d 564.
Moreover, whether one characterizes Silver State's actions as waiver or as ratification, the result is the same.
'While 'ratification' and 'waiver' may be and are sometimes used interchangeably, nevertheless, strictly speaking, 'ratification' is distinguished from 'waiver.' To relinquish is the gist of 'waiver' and to approve is the gist of 'ratification,' but to relinquish a known right is to give validity to the prior act and to approve a prior act is to relinquish a known right.' 31 C.J.S. Estoppel s 61.
Nor does the fact that the court found the conduct of Kelley to be 'unconscionable' aid Silver State. Acquiescence in a contract after learning that it does not represent the parties' actual agreement destroys the right of reformation either on the ground of mutual mistake or on the ground of fraud. Tisdel v. Central Savings Bank and Trust Co., Supra; Gertner v. Limon National Bank, 82 Colo. 13, 257 P. 247; Kruger v. Morris, 110 Mont. 559, 107 P.2d 142. We hold that that right is also lost by such acquiescence even though the conduct of the opposing party be termed 'unconscionable.'
The judgment decreeing reformation is reversed and the cause remanded with directions to conduct such further proceedings as may be necessary to determine the rights of the parties.
PIERCE and STERNBERG, JJ., concur.