Eitel v. Alford

• Decision Date: 13 April 1953
• Docket Number: No. 16688,16688
• Citation: 127 Colo. 341,257 P.2d 955
• Parties: EITEL et ux. v. ALFORD et al.
• Court: Colorado Supreme Court

Page 955

257 P.2d 955

127 Colo. 341

EITEL et ux. v. ALFORD et al.

No. 16688.

Supreme Court of Colorado, en Banc.

April 13, 1953.

John C. Young, John C. Young, Jr. and Rush L. Young, Colorado Springs, for plaintiffs in error.

Snyder & Tullis, Colorado Springs, for Alfords.

Robert L. Spurgeon and Robert H. La Grange, Colorado Springs, for the Bank.

CLARK, Justice.

Isaac Alford and Georgia Alford, husband and wife, instituted this action against Paul T. Eitel and Mildred L. Eitel, his wife, upon their joint promissory note, and to foreclose, as real estate mortgages, two deeds of trust covering lands in El Paso and Elbert counties. These lands, Eitel had purchased from Alfords; the note represented the unpaid balance of the purchase price; and the deeds of trust were to secure payment of said note, with interest and charges thereon. Plaintiffs also demanded judgment against defendants in remuneration of the 1948 taxes levied against said lands which became delinquent in 1949 and were paid by plaintiffs.

Defendants admit the execution of the promissory note and that no part of the principal thereof had been paid; denied that said note and deeds of trust securing same were properly in possession of plaintiffs; affirmatively allege that said documents had been wrongly delivered to plaintiffs by The Colorado Springs National Bank; assert that said bank had supervised the transactions between Alfords and Eitels relative to the purchase of the said lands and that the documents relating to that transaction had been improperly handled by said bank in various details, the particulars of which will hereinafter more clearly appear, and that by reason of these things defendants are without liability on said note. By way of counterclaim to the complaint, defendants demanded rescission of the purchase contract and cancellation of said note and deeds of trust; or in the alternative, if their demand for rescission be denied, that they have judgment by way of damages for all amounts paid pursuant to said contract. The Eitels also filed their third-party complaint against the Colorado Springs National Bank by which they seek judgment for damages against said bank in the sum of $21,450.

We will herein refer to the Alfords, who were plaintiffs in the original proceeding, as plaintiffs or as Alfords, or, if Isaac Alford alone is mentioned, he will be designated as Alford. Reference will be made to the Eitels as defendants or as Eitels, and to Paul T. Eitel as Eitel. The Colorado Springs National Bank will be designated as bank.

Upon trial in the district court without a jury, judgment was entered in favor of the plaintiffs against Eitels in the sum of $56,493.21, and foreclosure of the trust deeds as real estate mortgages was directed. Defendants' third-party complaint against the bank was dismissed.

As alleged grounds for reversal of plaintiffs' judgment against them, defendants present twenty-two separate specifications of points, together with thirteen additional specifications pertaining to the third-party proceeding by defendants against the bank, a total of thirty-five separate specifications. Obviously we may not treat each of these specifications separately, but we shall undertake to cover each and all of the contentions presented thereby in our further discussion of the case.

It also is true that, in the main, the facts of the case may be better presented in connection with the discussion of the legal points raised, than is possible by any preliminary summary. Suffice it to say at this point, that in the spring of 1947 the Eitels came to Colorado Springs from Clovis, New Mexico, with the object in view of buying farm lands. May 1, 1947, at the suggestion of a man whom they met in Colorado Springs, they went to look at the farm belonging to the Alfords near Simla, Colorado. On that day Alfords showed Eitel over the place, and he and his wife returned thereto the following day and they and the Alfords reached an agreement as to the price, of $50 per acre, or a total of $64,000. That they then went to the bank at Colorado Springs where they discussed the matter with Mr. Hemenway, as a result of which Mr. Hemenway offered them the services of the bank's attorney to draw up a sale and purchase contract. This contract was prepared during the noon hour; the parties returned to the bank around 2:00 o'clock on the afternoon of that day, and read and considered the drafted contract prepared by Mr. Spurgeon, the bank's attorney, who, however, was not present at that time. The contract thereupon was executed in duplicate by both Alfords and Eitel, the latter at that time making a down payment of $2,000 as provided by the terms of the contract. At this meeting a Mr. Lockmiller, a friend of Eitel who had accompanied him on his trip to Colorado, suggested that he should have an attorney examine the abstracts of title. Upon request for information concerning attorneys, Mr. Hemenway mentioned the name of Mr. Mobley, and Alford that of Mr. Snyder, and Eitel chose Mr. Mobley. As a means of working out the mechanics of the transaction, it then was agreed that Alford should bring the abstracts of title to the bank; that the bank would see that they were properly extended and brought down to date, and deliver them to Mr. Mobley for examination and preparation of the title opinions thereon. Other pertinent facts will be recited in our consideration of the case.

Following the introduction of all evidence in the case it appears that counsel for both plaintiffs and defendants submitted requested findings of fact and conclusions of law for consideration of the trial court, who then took the matter under advisement and in due time entered its findings of fact, conclusions of law, and separate judgments, in both of which was an order dispensing with the filing of motions for a new trial. The record does not disclose which of the tendered findings and conclusions were adopted, or which disregarded, by the court. Motion for new trial was not filed, but within ten days following the entry of the judgments and decrees, the defendants filed their motion under Rule 52, R.C.P.Colo., in which they requested that the court add two additional findings in both cases; ten separate additional findings in each set of findings of fact; seventeen additional conclusions of law to be entered in either one or the other or in both of said proceedings; and that the judgments and decrees be amended accordingly. This motion was denied by the court, and a considerable number of defendants' specifications of alleged error here relate thereto. Most of the matters to which these requests were directed will be discussed later, but again we state that it is impracticable to take up each of the points individually.

Subsection (b) of Rule 52, supra, authorizing the filing of a motion to amend or make additional findings, should be regarded similarly to a motion for a new trial. It does not require the trial court to act singly upon each of the proposed changes, additions, or modifications, nor to state any reason for its ruling thereon. The trial judge may decline to adopt any thereof by simply denying the motion, and if he believes that his findings and conclusions, already announced, are proper and sufficient, his denial of the motion without explanation is not error. It may well be, as contended by counsel for defendants in this case, that the announced findings and conclusions of the trial judge are in some respects ocnfusing, or difficult of understanding; nevertheless, if on the whole his findings and conclusions are supported by the record, they are sufficient to justify the pronounced judgment. We may even go further by recalling a rule so well established that it needs no citation of authority, that where the judgment of the trial court is correct and supported by the record, on review, it must be sustained notwithstanding the reasons given therefor are incorrect.

With few exceptions, all of defendants' specifications of alleged error spring from, or bear direct relation to, the theory of defendants' counsel in presenting their cause at the time of trial. On behalf of defendants it is contended:

(1) That by the sale and purchase contract of May 2, 1947, the Alfords agreed and became obligated to deliver to Eitel a marketable title to the lands covered thereby, free and clear of all liens and encumbrances;

(2) That said contract is executory in character and that the obligation to furnish marketable title is a continuing one, for the reason that the abstracts disclose defects in title to certain portions of said lands;

(3) That the condition of said title was known to plaintiffs and the bank, but unknown to defendants;

(4) That the bank agreed to hold defendants' note and deeds of trust until it should be determined that the title to all of said lands was in marketable condition, and that it had no right or authority to deliver said documents until that condition was met;

(5) That knowing of said title defects, and contrary to its promise, the bank did deliver said documents to Alford;

(6) That said delivery was wrongful, of no legal effect, and that Alford was not entitled to said instruments under the terms of his contract until he had established merchantable title to all of said lands;

(7) That defendants had not, expressly or impliedly waived any of their rights under said contract;

(8) That the clearing of title to all of the lands involved was a condition precedent to any demand by Alfords upon defendants, and such not having been performed, the foreclosure action was prematurely commenced;

(9) That since there could be no enforcible demand made upon defendants until Alfords had complied fully with said condition precedent, defendants are not barred from relief from their contract by way of rescission or damages, whichever in the view of the court would be most equitable under the circumstances.

With no little surprise, we note...