Opinion
Aug. 27, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 321
Louis A. Morrone, Denver, for plaintiff-appellant.
Grant, Shafroth, Toll & McHendrie, Ronald C. Butz, Denver, for defendants-appellees.
COYTE, Judge.
On March 11, 1970, plaintiff Young and defendant Edwards, as purchasers, entered into a contract for the purchase of land from defendant Beck. Although Edwards is made a defendant herein, no claim is made against him. The purchase price was $3,000, $950 was paid at the time of the execution of the contract, and $2,050 according to the terms of the contract was
'payable by purchaser's promissory note secured by a first Deed of Trust, payable on or before August 15, 1970. Said note to bear interest at 6% Per annum.'
The contract also provided 'that time was of the essence.' There was no specific date set for closing, and nothing was done toward closing until, on August 14, 1970, plaintiff mailed a promissory note to defendant Beck in the principal amount of $2,050 with interest at 6% Per annum, and payable on August 15, 1971. Beck refused to accept the note, to convey the real estate, and declared the contract breached.
Plaintiff brought suit for the specific performance of the contract. The court found that the contract called for payment of $2,050 in cash on or before August 15, 1970, that time was of the essence, and that the plaintiff did not make proper tender. The court concluded that plaintiff had breached the contract and thus was not entitled to specific performance. We affirm.
The trial court's finding that the contract called for payment in cash on or before August 15, 1970, and the finding that time was of the essence are supported by the evidence.
The contract was clear and unambiguous. Plaintiff having failed to tender a note in conformity with the contract or pay the balance owing on the contract by August 15, 1970, became in default under the terms of the contract.
In Dunton v. Stemme, 117 Colo. 327, 187 P.2d 593, the court discussed the use of 'time of the essence' provision in a contract as follows:
'It provides that, 'Time is of the essence of this contract and of all the conditions thereof.' As we understand and construe that clause it means that the performance by one party at the time specified in the contract is prerequisite and essential in order to enable him to require performance of its terms by the other party thereto. It means that time is such a material matter as to require exact compliance with the terms of the contract in this respect before there is any right to require a counter-performance. Ordinarily a breach of the terms of the contract may result in its termination at the election of the party who is not in default. If this provision of the contract is to be given its usual and customary interpretation and construction, under the evidence presented there can be no question that the contract was terminated when the purchaser failed to comply with its terms.'
Having breached the contract by not tendering payment as required by the contract, the plaintiff is not entitled to specific performance, Berdineau v. Shock, 21 Colo.App. 198, 121 P. 146, and the court properly dismissed plaintiff's complaint.
Judgment affirmed.
SMITH and VAN CISE, JJ., concur.