Opinion
June 18, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 477
David C. Mize, Colorado Springs, Donald L. Dill, Denver, for plaintiff-appellee.
William L. Carew, Colorado Springs, for defendants-appellants.
ENOCH, Judge.
Realty Loans, Inc., sued defendants Mickey and Patsy McCoy for breach of an installment contract for the sale of real estate. The trial court awarded plaintiff damages in the amount of $2,771, and defendants appeal. We modify the judgment, and as modified, affirm.
Plaintiff is the assignee of a contract executed in December 1966 between the McCoys as buyers and J. A. Siegel, seller. The contract provided for a downpayment of $200 and monthly payments of $97 for five years. The major portion of the monthly payments was applied toward interest and taxes. At the end of five years, buyers were obligated to pay the total outstanding balance of the purchase price in one lump sum. The initial purchase price of the home in 1966 was $12,750 and the amount due in December 1971 was $12,271. The contract further provided that title was to be held in escrow until buyers had fully performed their obligations and that seller was entitled to repossess the premises upon default of buyers. If seller repossessed, buyers were liable for the cost of repairs necessary to restore the property to saleable condition in an amount not exceeding $500.
Defendants made all payments due on the contract for the required five years, but were unable to tender the lump sum payment due in December 1971. Plaintiff repossessed the home, made repairs costing approximately $200, and attempted to sell it. Mr. Hoeppner, president of plaintiff, testified that although the house was shown to several people, he received only one offer of $10,000. This offer was rejected, allegedly because of unfavorable financing terms. Plaintiff later took the property off the market, expended approximately $300 for further repairs and rented the house.
Plaintiff brought suit to recover the $500 spent for repairs plus the difference between the unpaid balance of the purchase price and the market value of the home on the date of default. Trial was to the court, which found that defendants had breached the contract and that the market value of the property was $10,000. An award of $2,771 was entered in favor of plaintiff. On appeal defendants argue that the trial court's finding on market value is not supported by any competent evidence and therefore the judgment must be reversed. We agree.
Plaintiff attempted to prove market value by two means. First, it placed in evidence, without objection, the written offer for $10,000 which had been rejected. Second, the real estate broker who attempted to sell the house was qualified as an expert witness. When asked his opinion of the value of the property as of April 1, 1972 (the date when the house was withdrawn from the market), he testified as follows:
'Well, the value is based on if you have a ready, willing and able buyer and the only offer that we had was ten thousand dollars . . ..'
Counsel for plaintiff then requested the realtor's opinion on the value of the house in December 1971, the date of default. The witness responded:
'At that time I thought it would be a little higher than that, not much, but I anticipated that it was going to be fixed up, but, of course, it wasn't, at that time.'
Defendants did not object to any of this testimony.
In a breach of contract suit, the party seeking to recover has the burden of presenting competent evidence which furnishes a reasonable basis for assessing damages in accordance with the applicable measure of damages. Colorado National Bank v. Ashcraft, 83 Colo. 136, 263 P. 23; Bunnell v. Bills, 13 Utah 2d 83, 368 P.2d 597; See John v. United Advertising, Inc., 165 Colo. 193, 439 P.2d 53. In this case, it was necessary to determine the market value of the property returned by defendants in order to calculate properly the amount of damages suffered by plaintiff. If plaintiff failed to sustain its burden of proof with respect to this element of damages, it is not entitled to recovery. Farmer v. Norm 'Fair Trade' Stamp, Inc., 164 Colo. 156, 433 P.2d 490; J. C. Penney Co. v. Brown, 155 Colo. 212, 393 P.2d 575.
The only evidence relating to market value which was presented was based directly on the unaccepted offer received by plaintiff. Courts have uniformly held that evidence of an offer is inadmissible to prove the value of land. Ruth v. Dept. of Highways, 145 Colo. 546, 359 P.2d 1033; See Annot., 7 A.L.R.2d 781. Such evidence is excluded because it is speculative and unreliable and therefore does not have sufficient probative value to sustain a finding in favor of the factual proposition it was introduced to support.
'It is, at most, a species of indirect evidence of the opinion of the person making such offer as to the value of the land. He may have so slight a knowledge on the subject as to render his opinion of no value, and inadmissible for that reason. He may have wanted the land for some particular purpose disconnected from its value. Pure speculation may have induced it, a willingness to take chances that some new use of the land might, in the end, prove profitable. There is no opportunity to cross-examine the person making the offer, to show these various facts. Again, it is of a nature entirely too uncertain, shadowy, and speculative to form any solid foundation for determining the value of the land . . ..' Sharp v. United States, 191 U.S. 341, 24 S.Ct. 114, 48 L.Ed. 211.
Plaintiff points out that defendants did not object to the introduction of the offer itself or testimony of the expert witness which was based on the offer. However, such evidence is not merely inadmissible; it is incompetent to prove market value. The findings of a court must be supported by some competent evidence. See Williams v. New Amsterdam Casualty Co., 136 Colo. 458, 319 P.2d 1078. Any value placed on the property solely on the basis of an unaccepted offer of purchase is mere conjecture and cannot sustain a judgment, even though evidence of the offer was admitted without objection. See Stull v. People, 140 Colo. 278, 344 P.2d 455.
Since plaintiff failed to sustain its burden of proof with respect to the value of the house, we reverse that part of the judgment awarding plaintiff the difference between contract price and market value ($2,271.76). Plaintiff did present competent evidence to sustain the court's award of $500 for repairs and this issue is not contested by defendants.
The cause is remanded with directions to reduce the judgment by the amount of $2,271.76, including the interest assessed thereto. The judgment as modified is affirmed.
SILVERSTEIN, C.J. and COYTE, J., concur.