Opinion
Nov. 4, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 569
Wagner & Wyers, Denver, for plaintiff in error.
I. H. Kaiser, Denver, for defendant in error.
ENOCH, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This is an action to recover a specific sum due on an unpaid check and promissory note given as consideration for an option to purchase real estate. This is the second time this case has been appealed. Previously, in Sala v. Hay, 160 Colo. 169, 415 P.2d 330, the Supreme Court reversed the judgment entered by the trial court based upon a favorable ruling for the defendant on her motion to dismiss. The case was remanded to the trial court for new trial which resulted in a jury verdict in favor of defendant Hay. Sala, who was the plaintiff in the original action and the plaintiff in error in Sala v. Hay, Supra, appeals the judgment entered in the second trial.
The facts in this case are similar to those set forth in Sala v. Hay, Supra, and are substantially set forth again. On December 20, 1963, Hay and her husband signed a receipt and option agreement to purchase a motel from Louis and Evelyn Heidelberger. The agreement called for payment of $6,000 and contained a provision that in the event of the optionee's failure to exercise the option, the $6,000 should be retained as liquidated damages. The contract also provided that it was contingent 'upon purchaser's obtaining additional funds of approximately $5,000.' Hay gave her check for $6,000 to Sala, the real estate agent handling the transaction. Sala was asked to hold this check for ten days until funds could be obtained to cover it. Hay and her husband contemporaneously gave Sala a promissory note in the amount of $6,000, payable January 6, 1964. Hay's husband died on January 4, 1964, and thereafter she refused to go through with the transaction, and as a result Sala brought this action against Hay.
During the plaintiff's case in chief in the original trial, Sala testified that Hay orally agreed that a $5,000 loan at 1% Per month for three years would be satisfactory to her and that he, Sala, furnished a letter of commitment for a loan on those terms. Sala also testified that the reasons Hay gave for not exercising the option were that her husband had died, her health was not good, and that her daughter and her attorney advised her not to exercise the option. However, on cross-examination, Hay said the reason she did not go through with the transaction was that she could not obtain a $5,000 loan.
At the close of plaintiff's case in chief in the original trial, the trial court dismissed the action and entered judgment in favor of the defendant, finding that the reason that Hay did not go through with the contract was her inability to get a loan, and further, that she was not obligated to take the loan offered by Sala. On appeal, the Supreme Court held, Inter alia, that the action of the trial court in dismissing the suit was erroneous because the conflict in the testimony presented a jury question, which the trial court had no right to decide.
On remand from the Supreme Court, trial was to a jury which considered essentially the same evidence and found in favor of the defendant. Sala now appeals again, claiming the trial court erred in not directing a verdict in its favor, in allowing and rejecting certain evidence, and in giving and refusing certain instructions.
I
The plaintiff contends that, 'the trial court erred in not directing a verdict for the plaintiff.'
We have reviewed the record in this case and do not agree with the argument that a directed verdict for the plaintiff was justified. As in the first trial of this controversy, conflicting testimony was presented and the trial court properly submitted the evidence to the jury for determination. 'In passing upon a motion for a directed verdict the trial court must view the evidence in the light most favorable to the party against whom the motion is directed. Every reasonable inference to be drawn from the evidence presented is to be considered in the light most favorable to such party. A motion for directed verdict can only be granted where the evidence, when so considered, compels the conclusion that the minds of reasonable men could not be in disagreement and that no evidence, or legitimate inference arising therefrom, has been received or shown upon which a jury's verdict against the moving party could be sustained.' Nettrour v. J. C. Penney Co., Inc., 146 Colo. 150, 360 P.2d 964.
II
The plaintiff also contends that, 'the trial court erred in the admission and rejection of evidence.'
The plaintiff contends that the report of the Inheritance Tax Commissioner on the estate of defendant Hay's late husband should have been admitted into evidence for the purpose of showing that the defendant had in excess of $5,000 on March 2, 1964, the date set for closing. The trial court rejected this report on the grounds that although the report shows that funds in excess of $5,000 were in defendant's possession, it did not show that the funds were available for her use prior to closing. It is also claimed that a letter which was written by Sala to the sellers concerning Sala's offer to extend a loan to Hay should have been admitted into evidence.
The material evidence of both exhibits was admitted through other testimony and exclusion of the exhibits was not reversible error.
III
The plaintiff further contends that, 'the trial court erred in the giving and refusing of instructions.'
Sala claims that some of the instructions which were given were not supported by the record. We have examined the alleged erroneous instructions and find no error.
It is also claimed that it was error to refuse some of plaintiff's tendered instructions. The instructions to which plaintiff refers were properly refused because they were prejudicial in plaintiff's favor in that they ignored plaintiff's duties under the contract.
Judgment affirmed.
DWYER and PIERCE, JJ., concur.