Opinion
April 11, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
R. D. Charlton, Stanley T. Wallbank, Denver, for plaintiff-appellant.
Van Cise, Freeman, Tooley & McClearn and Michael J. Holloran, R. Dale Tooley, Denver, for defendant-appellee.
SILVERSTEIN, Chief Judge.
Appellant, United American Life Insurance Company (United), brought this action to recover a debt alleged to be due from appellee Urman. The debt arose from a 'Financing Agreement' under which United agreed to 'advance as a loan' to Urman an agreed sum each month. Urman, in defense, asserted that his obligation to pay, if any, was limited to payment out of commissions earned by him as an agent of United.
The amount claimed to be due was $6348.38, together with interest at six percent per annum from May 1, 1967. The fact that this amount had been advanced and remained unpaid was not disputed by Urman. After trial to the court a judgment was entered which provided that Urman was personally liable to United in the sum of $1653.28, together with interest from May 1, 1967 until the date of judgment. There is no appeal from this part of the judgment.
The judgment further provided that as to the balance of the claim Urman was obligated to pay only out of commissions earned or to be earned by Urman as agent for United. United appeals this part of the judgment, asserting that Urman's liability is not limited to payment out of commissions. We agree with this contention and modify the judgment accordingly.
The Financing Agreement, on which the claim is based, was executed by both parties. United agreed therein to advance as a loan to Urman a specified sum each month. In consideration of the sums loaned, Urman agreed 'to be personally liable therefor and for all amounts due or which hereafter may become due . . .' The agreement also provided, 'It is agreed that for purpose of repayment this loan shall be independent of commissions or other compensation due or to become due to (Urman) from (United) . . ..'
Over objection, Urman was permitted to testify as to two conversations he had with his superior, the general agent for United, one of which took place either prior to, or concurrent with, the signing of the agreement and the other several months thereafter. The gist of this evidence was that the general agent had said that in time Urman's renewal commissions would eventually liquidate or offset the advances. The evidence also showed that the earlier checks by which the advances were made born the notation, 'advance on account,' and that the later checks bore the notation, 'repayable loan.' The evidence is undisputed that this change in notation was made by the company on all checks involving similar payments to all agents and did not apply solely to payments to Urman.
Based on this evidence, the trial court concluded that it was the intention of the parties that payments designated as 'advance on account' were to be repaid only out of commissions, and further that the change of notation to 'repayable loan' changed the character of the payments and that Urman was personally liable for sums so paid.
The trial court erred in admitting into evidence, and relying on, extrinsic evidence to determine the intent of the parties. Where, as here, the contract is clear, complete and free from ambiguity, extrinsic evidence of prior or contemporaneous conversations cannot be permitted to modify the terms of the contract. Oriental Refining Co. v. Hallenbeck, 125 Colo. 77, 240 P.2d 913. American Mining Co. v. Himrod-Kimball Mines Co., 124 Colo. 186, 235 P.2d 804.
Since this appeal involves the construction of a written agreement, this court can make its own interpretation of the document, Rio Grande Fuel Co. v. Colorado Central Power Co., 99 Colo. 395, 63 P.2d 470, and is not bound by the findings, rulings and conclusions of the trial court. Meier v. Denver United States National Bank, 164 Colo. 25, 431 P.2d 1019. Urman's contention that the contract is ambiguous is without merit. The contract is unambiguous and it clearly imposes upon Urman the obligation to repay all amounts advanced, and the obligation of repayment is independent of commissions.
As to the matters occurring subsequent to the execution of the contract, the trial court properly found that the general agent had told Urman that he was 'coming along all right' and that his renewal commissions would ultimately pay his debit balance; and properly found that the company had modified the notations on the checks. The trial court did not find that these subsequent acts modified the contract. It did however rely on this extraneous evidence to interpret the contract contrary to its express terms. This was error. The trial court's conclusion, being unsupported by the facts and the findings thereon, is not binding on this court. American National Bank of Denver v. Christensen, 28 Colo.App. 501, 476 P.2d 281. The judgment is modified and the cause is remanded with directions to enter judgment in favor of plaintiff, United, and against defendant, Urman, in the sum of $634.38, together with interest thereon at the rate of six percent per annmum from May 1, 1967, until the date of entry of judgment.
COYTE and DWYER, JJ., concur.