Cullen v. Park Club Land Co.

• Decision Date: 07 July 1919
• Docket Number: 9449.
• Citation: 184 P. 303,67 Colo. 210
• Parties: CULLEN v. PARK CLUB LAND CO.
• Court: Colorado Supreme Court

184 P. 303

67 Colo. 210

CULLEN v. PARK CLUB LAND CO.

No. 9449.

Supreme Court of Colorado

July 7, 1919

Rehearing Denied Oct. 6, 1919.

Error to District Court, City and County of Denver; John H Denison, Judge.

Action by the Park Club Land Company against Gertrude Cullen. There was a judgment for plaintiff, and defendant brings error. Affirmed.

H. A. Hicks, of Denver, for plaintiff in error.

W. H Malone and W. H. Malone, Jr., both of Denver (B. M. Malone of Denver, of counsel), for defendant in error.

BURKE J.

This was a suit by defendant in error against plaintiff in error (hereinafter designated as in the court below) upon a written instrument, the only portion of which necessary to an understanding of the case is as follows:

'Contract of Sale.

'Denver, Colo., April 25, 1916.

'Received of Gertrude Cullen, of the city and county of Denver and state of Colorado the sum of fifty dollars as part payment on purchase price of lots number 12, 13, N. 1/2 14, in block number 9, in Park Club Place, an addition to the city and county of Denver, Colorado. Full purchase price of said property being eighteen hundred seventy-five dollars, payable as follows: Cash as above, fifty dollars; twenty-five dollars ($25.00) on the first day of each month, commencing May 1, 1916, for 12 months; fifty dollars ($50.00) per month thereafter commercing May 1, 1917, until May 1, 1919, on which date the balance of the purchase price is to be paid. All payments to be made at the office of the company in the city of Denver. All deferred payments to bear interest at 6 per cent. per annum, payable January 1st and July 1st in each year. * * * Abstract of title will be furnished purchaser within 10 days.

'Time is the essence of this contract, and the failure to make each and all of the several payments at the place and times herein specified shall, at the election of the said Park Club Land Company, work an absolute forfeiture of all rights of the said purchaser under this contract, and in that case all payments on the purchase price aforesaid shall be forfeited to the Park Club Land Company, not as a penalty, but as liquidated damages; the same being hereby agreed to be the reasonable compensation to be made on account of the failure to complete the purchase and take the property under this contract as above specified.

'The purchaser agrees to pay all general taxes and all special assessments levied and assessed on this property for the year 1916 and thereafter.

Gertrude Cullen. [Seal.]

'The Park Club Land Company,

'By R. H. Malone.'

This instrument was set up in the complaint, and it was further alleged that the cash payment of $50 and monthly payments until October 1, 1916, were made; that thereafter defendant failed and refused to make further payments, or to pay interest on deferred payments, or to pay taxes. The answer admitted the execution of the instrument, admitted the payments and the failure to pay. The denials of this answer were confined to mere conclusions. Plaintiff filed a motion to strike out the answer, and for judgment on the pleadings whereupon the answer was amended, and thereafter judgment on...