Carman v. Heber
| Citation | 43 Colo.App. 5,601 P.2d 646 |
| Decision Date | 05 July 1979 |
| Docket Number | No. 78-387,78-387 |
| Parties | Beverly J. CARMAN, Plaintiff-Appellee and Cross-Appellant, v. Eugene B. HEBER, Defendant-Appellant and Cross-Appellee. . I |
| Court | Colorado Court of Appeals |
Edwin B. Fieman, Denver, for plaintiff-appellee and cross-appellant.
Towey & Zak, James J. Zak, Denver, for defendant-appellant and cross-appellee.
Beverly J. Carman instituted an action against Eugene B. Heber alleging that the defendant had wrongfully interfered with certain contractual relations between Carman and Richard Salturelli. The trial court found that Heber had intentionally induced the breach of a receipt and option contract between Carman and Salturelli for the sale of Carman's business. In finding for the plaintiff, however, the court concluded that she was 40% Responsible for the failure of the sale and applied the principle of comparative negligence provided for in § 13-21-111, C.R.S.1973. Heber appeals the court's finding that he intentionally induced the breach of contract. On cross-appeal, Carman challenges the court's application of the doctrine of comparative negligence. We affirm the judgment in favor of Carman, and order reinstatement of the full award of damages.
In 1972, Carman purchased from Heber 100% Of the outstanding shares of stock issued by E.B.H., Inc., a Colorado corporation, which operated a business known as the Stardust Lounge. As partial payment, Carman executed and delivered to Heber, her promissory note secured by the stock.
In 1975, Carman and Salturelli executed a receipt and option contract for the sale of the business to Salturelli. During the ensuing months, Carman, her attorneys, Salturelli, and the real estate broker, all attempted to obtain from Heber a figure representing the balance due on the promissory note, and Heber indicated that the balance was $10,000 more than the actual figure. In addition, he appeared at an Arvada City Council meeting during a hearing on the transfer of the liquor license and testified that Carman had defaulted on the note and that he had begun foreclosure proceedings.
Salturelli, who was present at the meeting, informed Carman's attorney immediately afterward that he would not purchase the business. Salturelli testified at the trial that a major factor in his decision to breach the contract was Heber's failure to indicate the amount owing on the note and issue a letter authorizing its assumption. A few weeks after the breach of the contract for sale, Heber foreclosed on his note and took possession of the business, which he sold for a profit three months later.
Heber argues that there was insufficient evidence demonstrating the existence of the elements of intentionally inducing a breach of contract. We conclude otherwise.
The elements of the tort are: (1) the existence of a contract between the plaintiff and a third party; (2) knowledge by the defendant of this contract or knowledge of facts which would lead him to inquire as to the existence of the contract; (3) intent by the defendant to induce a breach of contract with a third party; (4) action by the defendant which induces a breach of the contract; and (5) damages to the plaintiff. Comtrol, Inc. v. Mountain States Telephone & Telegraph Co., 32 Colo.App. 384, 513 P.2d 1082 (1973).
Of these elements, Heber challenges the existence of the contract itself by asserting that the agreement was unenforceable by virtue of the absence of mutuality of obligation between parties. We need not, however, determine whether, as between the parties, the contract was enforceable, since unenforceability between the parties is no bar to an action for interference with contractual...
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