The trial court, of course, accepted this. Appellant relies on two Colorado cases, White v. Evans, 120 Colo. 200, 208 P.2d 922 (1949) and Mitchell v. Evans, 150 Colo. 568, 375 P.2d 101 (1962). Neither of these deal with our specific problem, that is repayment of the loan with independent funds.
They contend that instead they made sufficient demands at the time they executed the addendum to the original instrument for a title policy to be provided at the date of closing. This position is not supported by the record nor is it supported by the case of Mitchell v. Evans, 150 Colo. 568, 375 P.2d 101, on which appellants rely. The Colorado court held in the cited case that the purchaser did not lose his right of rescission.
In any event, the failure of O'Hara Denver to appear at closing was a breach of contract. Mitchell v. Evans, 150 Colo. 568, 375 P.2d 101 (1962). Marcor immediately made demand upon the Title Company for the liquidated damages held in escrow.
The purchaser is responsible for examining the title and informing seller of any defects. It is then up to the seller to correct the defects. Mitchell v. Evans, 150 Colo. 568, 375 P.2d 101 (1962). Thus, we agree with the trial court that defendants must transfer marketable title at closing.
Since plaintiff had failed to satisfy the condition precedent that the deed be placed in escrow, it was in default and therefore could not enforce a forfeiture against defendant. Mitchell v. Evans, 150 Colo. 568, 375 P.2d 101 (1962); White v. Evans, 120 Colo. 200, 208 P.2d 922 (1949). Accordingly, the trial court erred in finding that the buyer had forfeited his interest in the property.
We recognize that ordinarily, a party not himself ready, willing and able to perform his obligations under the contract may not insist on a forfeiture. Linch v. Game Fish Commission, 124 Colo. 79, 234 P.2d 611 (1951); see Mitchell v. Evans, 150 Colo. 568, 375 P.2d 101 (1962). [3] O'Hara Denver does not dispute, however, that on the morning prior to the scheduled 5:00 p.m. closing, one of its officers indicated to Marcor's president that the escrow fund belonged to Marcor because of O'Hara Denver's inability to obtain the requisite financing.
In Allison v. Schuber, 74 Colo. 545, 223 P. 53, the court affirmed a buyer's judgment for his $500 deposit where the seller had failed to furnish an abstract prior to the date the next payment was due. Where a vendor fails to tender merchantable title when due, the vendee is entitled to a refund of the payments previously made. See Mitchell v. Evans, 150 Colo. 568, 375 P.2d 101; Heaton v. Nelson, 69 Colo. 320, 194 P. 614; H. Fusilier, The Law of Real Estate Practice 391. The portion of the judgment awarding Sellers the $200 as liquidated damages is reversed; the remainder of the judgment is affirmed.